Tesla Motors Ltd & Anor v British Broadcasting Corporation (BBC)

The natural and ordinary meaning of an audiovisual publication is determined from the overall impression conveyed to its ordinary reasonable audience. The court must consider the publication as a whole, avoid over-analysis and account for the characteristics of its likely viewers.

Permission to amend may be refused where the proposed claim lacks a real prospect of success or any likely benefit would not justify the costs and court resources required. For general damages under section 3 of the Defamation Act 1952, the claimant must identify the nature of the probable pecuniary loss and the mechanism by which it would arise. Quantification is unnecessary, but serious causation difficulties may make the claim unsustainable.

The claimants manufactured the Tesla Roadster. They sued the BBC over a film broadcast on Top Gear, alleging libel and malicious falsehood concerning the vehicle’s range, reliability and the availability of two cars during testing.

Tugendhat J struck out the libel claim because the programme could not bear the pleaded meaning. He later refused permission to amend the malicious falsehood claim and add special damages, holding that the proposed case lacked adequate particularisation and a real prospect of success: [2011] EWHC 3659 (QB).

The appeal concerned whether the programme was capable of alleging that the claimants had misrepresented the Roadster’s range, and whether amended claims for general and special damages under section 3 of the Defamation Act 1952 should be permitted.

1. The appeal was dismissed unanimously. The programme was incapable of bearing the pleaded defamatory meanings. Its depiction of violent acceleration, continuous high-speed driving and heavy cornering made clear to a reasonable viewer that the track test bore no meaningful relationship to ordinary public-road driving. The viewer could not treat the calculated track range as the vehicle’s true range under normal conditions or infer dishonesty or misrepresentation from the manufacturer’s claimed range.

2. The proposed alternative libel meaning was also bound to fail. Whether or not it alleged dishonesty, it depended upon a comparison between track testing and ordinary driving which the reasonable viewer would recognise as meaningless.

3. Under section 3 of the Defamation Act 1952, a statement is calculated to cause pecuniary damage when such damage is more likely than not. A claimant seeking general damages need not quantify the loss. It must identify the nature of the loss and the mechanism by which it is likely to arise. The proposed pleading did that sufficiently, but its prospects remained inadequate because numerous earlier broadcasts were time-barred and the programme also contained damaging statements which were either true or otherwise non-actionable.

4. The proposed special-damages claim had no real prospect of success. The sales comparisons, customer reactions and other pleaded matters did not adequately link actionable falsehoods to identifiable lost sales. The pleading also failed to distinguish loss caused by actionable broadcasts from loss caused by earlier broadcasts and other non-actionable statements.

5. The principles in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 were applicable. Even if the general-damages claim were technically arguable, it had insufficient prospect of producing a substantial recovery or other useful relief to justify the costs and court time required. An injunction was also unlikely to serve a purpose because production of the Roadster was due to cease. That circumstance materially distinguished Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40.

6. The amendment application was not late in the ordinary sense because case management and trial preparation had barely begun. Permission was nevertheless properly refused because the proposed claims lacked sufficient merit.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the striking out of the libel claim and the refusal of permission to amend the claims for malicious falsehood and special damages: [2013] EWCA Civ 152.
2. High Court, Queen’s Bench Division: Tugendhat J struck out the libel claim and refused permission to make the proposed amendments because the libel meanings were unsustainable and the amended damages claims lacked adequate particularisation and a real prospect of success: [2011] EWHC 3659 (QB).