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

This is the third interlocutory judgment that I have delivered in this claim for libel and malicious falsehood arising out of a “Top Gear” programme originally broadcast by the BBC in England and Wales on 14 December 2008.

The Claimants manufacture and sell electrically powered motor vehicles for use by motorists on public roads. Until early in 2012 they sold a sports car known as a Roadster. It has a body made in the UK by Lotus, and is very similar in appearance to the Lotus Elise. The Top Gear programme is a comparison between the Roadster and the Elise.

The claim is based on the video broadcast, which includes both words and moving images. While it is the video image which is the subject of the complaint, it is only the words that can be reproduced in this judgment. But I have watched, and have in mind, the whole video image.

The words complained of include in particular the following, as set out in my second judgment ([2011] EWHC 2760 (QB) (28 October 2011)) delivered following a hearing on 19 October 2011:

The claim form was not issued until 29 March 2011, so the claims are limited by statute to those repeats of the broadcast (on the internet and elsewhere) viewed on and after 30 March 2010. There is thus a period of some fifteen months when the programme was broadcast on a number of occasions to many millions of viewers, but in respect of which claims are statute barred.

The BBC did not repeat the broadcast on any of its own channels after 10 November 2010, but it has made it available for viewing on the internet and elsewhere in the 12 month period before the issue of the claim form, and on the internet since the issue of the claim form. See paras [10] and [11] of my second judgment. It may be inferred that many of those who have viewed it, both before and since the date of the claim form, have been outside the jurisdiction of this court. No claim is made in respect of publication outside the jurisdiction of this court

Two features of this case give rise to issues on the law of causation. The first such feature is the fact that the great majority of viewers viewed the broadcast before 30 March 2010. The second such feature is that one of the matters about which the Claimants would like to make a claim in libel is a statement about the Roadster which is adverse to it, but which the Claimants have admitted to be true, namely the words:

“… although Tesla say it will do 200 miles we worked out that on our track it will run out after just 55 miles and if it does run out it is not a quick job to charge it up again.”

In my first judgment ([2011] EWHC 3659 (QB)), given ex tempore on 19 October 2011, I gave a ruling on meaning under CPR Practice Direction 53 para 4. I held that the words complained of were not capable of bearing the meaning attributed to them by the Claimants in the Particulars of Claim, nor any of four alternative defamatory meanings attributed to them by Mr McCormick in the course of his submissions. Accordingly by my order dated 3 November 2011 the claim in libel was struck out.

There is now before the court, at no more than a few days notice, an application to amend the Particulars of Claim to re-instate a claim in libel on the basis of a new meaning which Mr Spearman advances as a defamatory meaning of the words complained of. I shall return below to this fresh application to re-introduce a libel claim.

In my second judgment I considered the application by the BBC to strike out the claim in malicious falsehood on the grounds that the Particulars of Claim disclosed no reasonable grounds for bringing the claim, or that it was an abuse of the process of the court. Alternatively, the BBC asked that summary judgment be given in its favour on the ground that the Claimants have no real prospect of success. The BBC relied on CPR Part 3.4(2)(a), on the court’s inherent jurisdiction, and on CPR Part 24.

CPR Part 3.4(2)(a) reads:

“The court may strike out a statement of case if it appears to the court –

(a)

that the statement of case discloses no reasonable grounds for bringing or defending the claim;…”

CPR Part 24.2 reads:

“The court may give summary judgment against a claimant … on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim…”

The BBC put its case on abuse of process under a number of headings. Until the present application the Claimants have not pleaded special or actual damage. They have advanced the claim in malicious falsehood under the Defamation Act 1952 (“the 1952 Act”) s.3, which includes the following:

“(1)

In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage— (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form;…”

In October I struck out the claim in malicious falsehood on the ground that the claim for damages under s3 of the 1952 Act was so lacking in particularity that it could not be allowed to proceed.

Mr Caldecott had referred to the requirement as to particularity in statements of case set out in CPR Part 16.4, in the Practice Direction to Part 16 para 8.2(8), and in the Pre-Action Protocol for Defamation para 3.2: see paras [35]-[36] and [74] of my second judgment. CPR Part 16.4 requires that: “Particulars of claim must include – (a) a concise statement of the facts on which the claimant relies…” The Practice Direction para 8.2(8) requires that: “The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:… (8) any facts relating to mitigation of loss or damage”. The Pre-Action Protocol for Defamation para 3.2 requires: “The Letter of Claim should include the following information:-… details of any special facts relevant to … any particular damage caused by the words complained of.”

I left over for further consideration the application advanced by the BBC on the basis that the reputational interests at stake in the proceedings are not proportionate to the court time and the cost it would take to resolve (Jameel v Dow Jones [2005] QB 946).

I considered, and rejected, the BBC’s application that the claim be struck out on the ground that the Claimants had waived or otherwise lost any right to make a claim by reason of their conduct, including in particular previous statements made publicly, and in official documents known as Forms 10-Q and 10-K filed in the USA. In these documents, so the BBC contend, the Claimants had stated that they were not at risk of suffering any material loss as a result of the matters complained of in this action: see paras [77]-[85] of my second judgment. This point is fully pleaded in the Defence. The documents relating to it are voluminous, and further evidence from US lawyers has been submitted on this point for this hearing.

My order striking out the claim in malicious falsehood was conditional. It was made to take effect on 18 November 2011 unless the Claimants applied by that date to the BBC for its agreement to an amendment, or unless the Claimants applied for permission to amend their Particulars of Claim by Application Notice to be issued not later than 25 November.

On 25 November the Claimants issued an Application Notice by which they applied for permission to amend the Particulars of Claim. The proposed amendment was not only to give particulars of the claim under the Defamation Act 1952 s.3, but also to add a claim for special damages never previously advanced. That claim is put on alternative bases, namely in the sum of US$3.8 million, for loss of profits, alternatively, in the sum of US$171,000, for expenses thrown away on parts bought for cars that were never made.

On 25 January 2012 the BBC wrote asking for further information of the proposed draft particulars of damage. The Claimants declined to respond to these requests. They said the information was not necessary for the BBC to understand their case and that disclosure would be given in due course of such documents as the BBC were entitled to see.

On 6 February 2012 the Claimants gave notice by letter that they would apply to reinstate the claim for libel, and served a revised draft of the Amended Particulars of Claim accordingly.

The falsehoods which the Claimants allege were broadcast were pleaded in the Particulars of Claim at para 7, and there is no application for permission to amend this paragraph. They are:

“(1)

The first Roadster shown (which was silver in colour) did not run out of charge.

(2)

The first Roadster did not have to be pushed back into the hangar as a result of running out of charge.

(3)

At no point were the brakes of the first Roadster broken.

(4)

The second Roadster (which was grey in colour ) did not become immobile as a result of over heating.

(5)

There was no time at which neither Roadster was available for driving.”

There is very little dispute between the parties as to the true facts underlying this case.

As to the Claimant’s alleged falsehoods (1) and (2), it is agreed that the first Roadster did not actually run out of charge and accordingly that it did not have to be pushed into a hanger for that (or any other) reason. The case for the BBC is that the words complained do not mean that it did run out of charge. The BBC rely on the words (admittedly true) that “on our track it will run out after just 55 miles”.

The Claimants contend that a false statement is to be found in the footage described in the bracketed words above “(Footage of people pushing the Roadster into the hangar followed by Jeremy Clarkson inserting the charger lead into the Roadster.)”. But it is also common ground that the first Roadster was actually being recharged in those images which show Mr Clarkson inserting the charger lead into the Roadster.

For the purposes of the strike out application I assume (in favour of the Claimants) that at least some reasonable viewers would understand the broadcast to contain the false statement that one of the Roadsters did actually run out of charge and that it was being pushed into the hangar because it had to be pushed. Since the single meaning rule does not apply to the tort of malicious falsehood, it is sufficient for the Claimants to succeed if at least some reasonable viewers understood the broadcast in this way (Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd [2010] EWCA Civ 609; [2011] 1 QB 497).

As to the Claimants’ third alleged falsehood, there is no dispute of fact. The issue is one of meaning. See my second judgment para [19] which quotes from the Particulars of Claim:

19.

Under the Particulars of Malice certain further information is given as to the alleged falsity. In particular it is said:

“The Claimant’s engineer Stuart Brierley and Mr Cochrane explained to various members of the Top Gear crew and Mr Whitehead that all that had happened was that a fuse within an electrical circuit providing additional power to the brake pedal had ‘blown’ meaning that while the brakes were entirely safe, the brake pedal needed to be pressed down harder than would otherwise be the case. ”

It is the BBC’s case that on the Claimants’ own version of events the brakes of the first Roadster were broken, at least as those words would be understood by any reasonable motorist. The Claimants’ alleged falsehoods (3), (4) and (5) are all based on words spoken immediately after Mr Clarkson said “And it doesn’t appear that you get much in the way of reliability either”.

Again the BBC were content that I should assume in favour of the Claimants that some reasonable viewers would understand that there was a false statement that what failed was the brakes themselves, whereas the truth was that there was a failure in the fuse within the electrical circuit providing power to the brake pedal additional to the power provided by the driver’s foot.

The BBC has also been content for me to proceed on the assumption that, if the Claimants prove any relevant falsehood, they will also prove malice. However, that is a temporary assumption only, and malice will be very much in issue at any trial.

It is not necessary for me to set out again the position in relation to the Claimants’ alleged falsehoods (4) and (5). The position relating to them is set out in my second judgment at paras [20] and [23].

The upshot is that in relation to each statement which the Claimants allege to be false, and to be calculated to cause (and, now, to have actually caused) pecuniary damage, there is a true statement which relates to the same matter, and which is unfavourable to the Roadster.

The Claimants have not conceded that the true statement unfavourable to the Roadster is in each case one that is calculated to cause pecuniary damage. But in my judgment that must follow from their own approach to the case.

The fact that the broadcasts included statements unfavourable to the Roadster, some of which are alleged to be false, but others of which are admitted to be true, is one of a number of difficulties facing the Claimants. The difficulties arise on the issue of causation of damage, which a claimant must prove. I drew attention to one difficulty in paras [67] to [69] of my second judgment, when I wrote:

“There are also words and images which are unfavourable, but admittedly true to some degree, such as that there was a failure relating to the brakes and overheating”.

Another difficulty on the issue of causation to which I drew attention was that the claim can only be brought in respect of damage likely to have been caused (or, now, actually caused) by the broadcasts since 30 March 2010. Damage of any kind caused by broadcasts viewed more than 12 months before the issue of the claim form are, it is agreed, statute barred.

There are two other difficulties to which I referred in paras [68] and [69]-[70]. One of these arises from the fact that the broadcast also contains words and images that are very favourable towards the Roadster. This gives rise to the question whether, in answering the question whether the words complained of as calculated to cause (or to have in fact caused) pecuniary damage, the court should have regard to the favourable words and images which are included in the broadcast. In para [73] I wrote in the last sentence that it was not necessary for me to form a view on that point.

In paras [73] and [74] I wrote:

73.

Although Mr Caldecott made no such concession, it may be that if the programme had included only the words complained of as allegedly false (and there had been no issue of causation arising from the delay in issuing proceedings), a court would have had little difficulty in accepting that it was more probable than not that those words would cause some pecuniary damage to the Claimants. That would not relieve the Claimants of the need to particularise the nature of the damage which they are claiming to be more probable than not. But it would go some way towards proving causation. However, if the court has to take into account, not only the allegedly false words, but also the natural and probable consequence of the programme as a whole, it seems to me the position of the court might very well be quite different. Because of the view I have taken of the lack of particularity of the claim, it is not necessary for me to form a view on this point.

74.

In my judgment the claim under section 3 of the 1952 Act is so lacking in particularity that it cannot be allowed to proceed. Unless it is capable of remedy, the claim must be struck out.

In applying for permission to amend, the Claimants have attempted to address some of the points raised in my second judgment, but not all of them. The proposed amended plea under s.3 remains in the form in which I cited it in para [27] of my second judgment. It still includes para 9 of the original draft, by which the damage relied on is the damage caused by the broadcast as a whole, and is not expressed to be confined to the damage calculated to be caused by the words upon which the action is founded:

“Each of the broadcasts was and is calculated to cause pecuniary damage …”

What has changed is that there are now over 10 pages of particulars, in addition to the two new alternative claims for actual or special damage. But at no point does the proposed amended pleading seek to distinguish the pecuniary damage (if any) caused (or likely to have been caused) by the statements which are unfavourable to the Roadster and which are alleged to be false, from the damage caused (or likely to have been caused) by the statements which are unfavourable to the Roadster but which are admitted to be true.

Nor is any attempt made to distinguish, and so to confine the claim to, the damage allegedly caused (or likely to have been caused) by broadcasts which are not statute barred and made to viewers within the jurisdiction, from damage allegedly caused (or likely to have been caused) by broadcasts which are statute barred or made to viewers not within the jurisdiction.

The first submission made for the Claimants in their Skeleton Argument relates to the standard of proof required by the word “calculated” in s.3 of the 1952 Act. In my second judgment I had recorded that:

Mr Spearman now submits that neither Gray J nor Lewison J had had to address arguments advanced by reference to the HRA, as interpreted in Re S [2005] 1 AC 593 and other cases, which make clear that Art 10 does not enjoy any priority over any other Convention right. “Likely” is susceptible to a range of meanings (Cream Holdings Ltd v Banerjee [2003] Ch 650 at [31]-[40]; [2005] 1 AC at paras [19]-[21]. Here the other Convention right to be balanced is the right to protection of property enshrined in the First Protocol Art 1.

Further Mr Spearman submits that the issue of damages in a malicious falsehood claim only arises for consideration if and when the court has found that there is a false statement which the defendant has made maliciously (that is, knowing that it is false, or reckless as to whether it is true or false). There is no public interest in the dissemination of malicious falsehoods, and so Art 10 is not engaged. In Reynolds v. Times Newspapers Ltd [1999] UKHL 45; [2001] 2 AC 127 Lord Hobhouse said:

“There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation.”

Mr Caldecott submits that Cream Holdings (which concerned the Human Rights Act 1998 s.12) is of little assistance, since the context in which the standard of proof was considered in that case was different. There the Court of Appeal, and later the House of Lords, were concerned with a test to be applied at the interlocutory stage, including at the stage before a defendant or respondent had had an opportunity to file any evidence. So a flexible standard of proof was held to be what was required. Moreover, in the HRA s.12(3) the statutory test is “that the applicant is likely to establish that publications should not be allowed”. The 1952 Act s.3 does not include the word ‘likely’, but the word ‘calculated’. Although ‘calculated’ has been construed as meaning ‘likely’, that construction ought not to import all possible meanings of the word ‘likely’. ‘Calculated’ is a strong word in so far as it may be synonymous with ‘likely’. So it means ‘likely’ in the sense of more probable than not.

Further, he submits that under s.3 of the 1952 Act the test is to be applied at trial. The common law required proof of actual or special damage, and that has to be proved to the normal standard of proof in civil cases, namely the balance of probabilities. The 1952 Act s.3 represents a relaxation of the requirement of actual damage. There is no reason to construe s.3 of the 1952 Act as relaxing the standard of proof.

Mr Caldecott submits that the concerns of Gray and Lewison JJ on the risk of undue interference with Art 10 rights are a sound basis for requiring the normal standard of balance of probability, as they did. I note that he also argued in Ajinomoto (see para 26 at p99D) that if, in addition to Art 10 (freedom of expression), the First Protocol Art 1 is engaged (as I assume that it is), it is engaged on both sides.

In my judgment nothing in the present case turns on the standard of proof, so I do not need to reach a decision on these arguments.

But in case I am wrong about that, I must say that I do not find that the Claimants’ arguments prevail. I do see the force of Mr Spearman’s submission that Art 10 is no longer engaged by the time the court comes to consider whether a malicious falsehood has caused recoverable damage. But that only serves to put on one side the HRA. The submission that the s.3 of the 1952 is to be read as introducing a standard of proof lower than the standard generally applicable in civil litigation does not seem to me to be supportable. Further, the decisions of Gray and Lewison JJ are at the very least persuasive. And for the reasons I have given, I think that they are also still good law.

In their Skeleton Argument the Claimants repeat their submissions made in October that the court does not have to take account of the whole broadcast, and in particular does not have to take account of potentially favourable words and images. The Skeleton argument does not in terms address whether the court has to take into account unfavourable statements (ie statements calculated to cause pecuniary damage) which are included in the broadcast but which are admittedly true. In his oral submissions Mr Spearman argued that the context in which the alleged falsehood appears is irrelevant, at least at the pleading stage.

Mr Caldecott submits that a claimant must prove that the damage referred to in s.3 (or any actual damage) must be shown to be caused by “the words upon which the action is founded”. That is what s.3 of the 1952 Act says. And any words which are calculated to cause pecuniary damage, but which are not false, cannot be words upon which the action is founded. The position is stronger in relation to words which are not even calculated to cause pecuniary damage, such as words of praise.

A passage from Gatley on Libel and Slander 11^th ed was put before the court by the Claimants. In para 21.12 the editors write:

“The special damage must be such as directly and naturally (or naturally and probably) results from the words [footnote: Kaye v Robertson [1991] FSR 62, at 67 …]. The Defendant will not be liable where it is attributable not to his words but some other unconnected fact or circumstance [footnote: Barratt v Associated Newspapers (1907) 23 TLR 666 (house already had reputation as haunted)] In Palmer [Bruyn] & Parker Pty Ltd v Parsons [footnote: [2001] HCA 69; 208 CLR 388] … the High Court of Australia held that the damage suffered by the claimants was not a natural and probable result of the letter [containing the false statement]. A speedy correction and apology may mean that pecuniary loss is not the natural consequence of the falsehood”.

Barratt and Palmer are not amongst the cases of which transcripts have been provided to me, but they seem to me to state no more than the obvious. The need for attention to causation has been increased by Ajinomoto, where the Court of Appeal considered the effect of applying, or not applying, the single meaning rule in malicious falsehood.

Sedley LJ at para [34] said:

“Instead of … denying any remedy to a claimant whose business has been injured in the eyes of some consumers on the illogical ground that it has not been injured in the eyes of others, or alternatively … giving such a claimant a clear run to judgment when in the eyes of many customers the words have done it no harm, trial of plural meanings permits the damaging effect of the words to be put in perspective and both malice and (if it comes to it) damage to be more realistically gauged.”

Rimer LJ said at para [42]:

“The application of the [single meaning] rule can also be said to carry with it the potential for swinging the balance unfairly against one party or the other, resulting in no compensation in cases when fairness might suggest that some should be due, or in over-compensation in others.”

It is plain that the Court of Appeal was envisaging that a trial judge would be required to find what damage was calculated to be caused, or had actually been caused, by reference to the court’s findings on the numbers (and other relevant characteristics) of the viewers who had understood there to be a false statement, and to exclude any other damage.

In the draft amended pleading the Claimants plead that if, contrary to their case,

“the item as a whole [‘the item’ is defined to include all the words and images in the broadcast] (including words, sounds and images potentially favourable to the Claimants and/or the Roadster) must be proved to be so calculated, the case of each Claimant is that the item as a whole was so calculated”.

I shall therefore assume that the Claimants will establish that. This means that there can be put on one side the words and images potentially favourable to the Claimants and/or the Roadster. But the draft pleading says nothing about the words and images potentially causative of pecuniary damage which are admitted to be true.

However, the importance of this point is apparent from the Claimants’ draft amended pleading. At para 9(4) they plead:

“(a)

The business of each Claimant concerns the manufacture and sale of motor vehicles. Purchasers of all motor vehicles value highly reliability and safety and make their buying choices with these issues (among others) in mind.

(b)

There has been (and remain) considerable customer resistance to electrically powered vehicles based, in part, on concerns about the reliability of the technology employed (which is perceived as ‘cutting edge’ and hence less ‘tried and tested’) and about the range of such vehicles (ie the distance for which they can be driven before requiring re-charging) and the lack of ready availability of places at which they can be re-charged. The lack of availability of locations at which such vehicles can be re-charged swiftly means that certainty as to the distance that can be travelled before a re-charge is required, is at a premium (compared for example to a petrol engine car which have numerous refuelling stations available to it on any given journey). Studies have consistently shown that an electric vehicle’s range and the risk of running out of charge is the highest concern preventing the adoption of electric vehicles. By way of example … [and examples are set out].

(c)

Potential buyers of motor vehicles expect reliable, safe brakes. Potential buyers of the Roadster (which is capable of high acceleration and high speeds) expect a substantially greater degree of reliability and safety in relation to brakes.

(d)

Each of the falsities was one which on its face would probably deter potential buyers from buying the Roadster and/or other vehicles manufactured and sold by the Claimants on account of the a perceived lack of reliability, whether as to range, range predictability, brakes or motor function or a combination of those…”

I assume that para 9(4) would all be proved at a trial. But every word of it applies with no less force to the statements about range and reliability which are unfavourable to the Claimants and/or the Roadster and which are admitted to be true. It is admitted to be true “that on our track it will run out after just 55 miles and if it does run out it is not a quick job to charge it up again” (see para 7 above). It is admitted to be true that there was a lack of reliability in the fuse on the electric circuit providing additional power to the brakes. So the words of para 9(4)(d) might equally be adapted to state:

“Each of the true statements unfavourable to the Roadster was one which on its face would probably deter potential buyers from buying the Roadster and/or other vehicles manufactured and sold by the Claimants on account of the a perceived lack of reliability, whether as to range, range predictability, brakes or motor function or a combination of those”

Mr Caldecott submits that the draft amended pleading is irretrievably unclear. Even if the Claimants had an arguable case on the fact of lost sales of the Roadster, it is wholly impossible to know whether any of the lost sales were caused by time-barred viewings or not.

For example, para 9(5) of the draft amended pleading is:

“In support of the contention that the reactions of viewers set out below were a natural and probable result of the broadcasts, the Claimants rely upon the following facts and matters which taken in combination clearly establish an overall pattern that the reaction to the item was negative…

(b)

The experience of sales staff of the Claimants within England and Wales is that about 50% of all persons with whom they have spoken at promotional events refer to the item as having portrayed a negative impression of the Roadster and that a substantial proportion of the persons who entered the London showroom did so. The experience of sales staff in this and other jurisdictions is that the item has been widely viewed persons interested in buying a Roadster and that the impression gained by viewers (according to what they tell sale staff) is almost always negative to the extent that the falsities set out in paragraph 7 have been understood from the item and are believe to be true. By way of examples:

•

At a promotional event on 29 July 2011, of 34 persons spoken to about the Roadster, 27 referred to the item as having been critical of the Roadster.

•

At a promotional event in April 2010 where Best Buy displayed a Roadster in the London store to generate excitement about the car, 90% of the people who spoke to Rachel Konrad [a representative of the Claimants] expressed concern about the item/asked about the item…” (emphasis added)

There are 7 such bullet points, all as vague as, or vaguer than, the first two. I shall assume that all that is pleaded will be proved. But it is obvious that the statements about the Roadster set out above which are admitted to be true include statements that are unfavourable, and no attempt is made in the pleading to explain why the incidents pleaded in the bullet points refer to the unfavourable effect of the falsities rather than to the unfavourable effect of what is admittedly true. As Mr Caldecott submits, none of the prospective purchasers whose remarks are pleaded in these bullet points appears to have stated when, or in which country, he viewed the broadcast, or which part or parts of it gave rise to such concerns as he expressed. The lack of response to the BBC’s request for further information supports the inference that the Claimants are not in a position to put evidence on such matters to the court, whether now or at any trial.

In para 9(5)(g) there is a reference to the reaction of one viewer which specifically identifies the subject of his concern to be one of the unfavourable statements which is admitted to be true:

“(g)

In April 2011 two sales prospects wrote (respectively) to Tesla

•

“wanted to get thoughts on the above review [link to youtube Top Gear item] – where they quote only 55mi per charge based on track testing…”

Mr Caldecott objects on other grounds to the second bullet point in para 9(5)(b). Only a broadcast after 29 March 2010 can be relied on as part of the cause of action. The date of the promotional event in April 2010 is not given. The dates of broadcasts on and after 29 March 2010 and before the end of April 2010 are not in dispute. There were broadcasts on the DAVE channel on 28 and 29 March (two on that date). The next broadcast was also on that channel on 30 April 2010. There were a further six in May and June 2010, and none on that channel thereafter. There was one broadcast on BBC2 on 17 October 2010. No indication is given of whether the concerns expressed in April 2010 related to the alleged falsities or the admitted truths.

Mr Spearman accepts this point, but he submits that (as is also pleaded in para 9(5)) the reactions of persons who viewed the broadcast on dates for which the limitation period has expired, or in places outside the jurisdiction, can be relied on as showing the likely effect of the broadcast on prospective customers who viewed a broadcast within the limitation period and within the jurisdiction. I accept this submission only up to a point. If the examples pleaded in respect of viewers outside the jurisdiction, or outside the limitation period, demonstrated these persons reaction to the statements that are alleged to be false, then the court might infer that other prospective purchasers would be likely react in a similar way to broadcasts viewed within the jurisdiction and within the limitation period.

The points on causation made by Mr Caldecott apply with equal force to the newly drafted claim for actual or special damage. There is no way by which a reader of the draft amended Particulars of Claim can ascertain which of the expenses thrown away, or, alternatively, the sales lost, has been thrown away or lost, as a result of the unfavourable statements which are alleged to be false, and which have been thrown away or lost as a result of the unfavourable statements admitted to be true.

Mr Spearman cited a number of principles and authorities on the law of misrepresentation. A representee is entitled to rely on a presumption that a misrepresentation has had an effect. The misrepresentation does not have to be the sole inducement acting upon the representee. I accept these principles and bear them in mind.

It may be that the problems faced by the Claimants are insuperable. In my second judgment I took the view that they were very great. But at least in part they are of the Claimants’ own making. In so far as they have difficulty in demonstrating that losses were likely to be, or were in fact, caused by the broadcasts viewed within the one year limitation period, the difficulty flows from their delay in issuing their claim form. Even if, or in so far as, the Claimants’ difficulties in formulating their case are not of their own making, it does not follow that it is the BBC which should in justice suffer the consequences.

If the draft amended plea had been included in the original version of the Particulars of Claim I would have had to consider whether to strike it out under CPR Part 3.4 as embarrassingly vague, or whether to give judgment under Part 24. Since it is the Claimants who are applying for permission to amend, it is common ground that the court should take into account (amongst other considerations) whether the proposed amendment: (1) satisfies the requirement of proper pleading, namely the test applied under CPR Part 3.4; (2) satisfies the requirement of CPR Part 24 (whether it has a real prospect of success); (3) discloses a 'real and substantial tort' (Jameel v Dow Jones [2005] QB 946 at 947); (4) will cause no more injustice to the other party than can be adequately compensated in costs; and (5) is otherwise in accordance with the overriding objective.

A defendant is entitled to know what is at stake in a claim that it faces. The monetary size and complexity of a claim are also important for the court to know in the exercise of its case management powers in pursuit of the overriding objective. As was established in Joyce v Sengupta [1993] 1 WLR 337 at 347C, a claim under s.3 of the 1952 Act is not to be satisfied merely by an award of nominal damages. In that case the claimant was an individual, and it was held that damages could be awarded for distress. Companies such as these Claimants cannot recover damages for injury to feelings, but I accept that damages under s3 of the 1952 Act may in principle be substantial.

The amount of the damages claimed is important to the court, because the requirement of the overriding objective (CPR Part 1.1) that the court deal with cases justly, includes a requirement that the court deal with the case in ways which are proportionate to, amongst other matters, the amount of money involved and the importance of the case. It is important to the defendant because a defendant needs to be able to take measures to protect its position on costs, and generally to decide what resources to devote to the litigation.

Mr Caldecott cites Swain-Mason v Mills & Reeve LLP [2011] EWCA Civ 14; [2011] 1 WLR 2735 where Lloyd LJ said at para [73]:

“A point which also seems to me to be highly pertinent is that, if a very late amendment is to be made, it is a matter of obligation on the party amending to put forward an amended text which itself satisfies to the full the requirements of proper pleading. It should not be acceptable for the party to say that deficiencies in the pleading can be made good from the evidence to be adduced in due course, or by way of further information if requested, or as volunteered without any request. The opponent must know from the moment that the amendment is made what is the amended case that he has to meet, with as much clarity and detail as he is entitled to under the rules.”

As Mr Spearman submits, the amendment proposed by the Claimants is not late in one sense. It is not made at, or just before, a trial. But as Mr Caldecott submits, it is late in the sense that the claim form was issued very late (so that the early broadcasts are all statute barred) and the BBC served its Defence on 21 June 2011. This is a case that could, and should, have been ready for trial by now (although I accept that some of the delay since the service of the Defence has been for the convenience of the parties’ counsel in listing).

Mr Spearman submits that the relevant principles are set out in Cobbold v London Borough of Greenwich [1999] EWCA Civ 2074, and Grovehill Ltd v Hughes [2010] EWCA Civ. In Cobbold Peter Gibson LJ said:

“The overriding objective [of the CPR as expressed in Part 1] is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significantly harmed.”

In Grovehill it was established that the draft amendments must have a real prospect of success. That is, they must be ones which would satisfy the test in CPR Part 24, namely have a real prospect of success. As Mr Spearman submits "The criterion which the judge has to apply under CPR 24 is not one of probability; it is absence of reality" see per Lord Hobhouse in Three Rivers District Council v. Bank of England (No 3) [2001] 2 All ER 513. For that purpose, it is "open to the court to reject … evidence if it were inherently implausible or if it were contradicted, or were not supported, by contemporaneous documentation." See per Arden LJ in Collier v. P&M J Wright Ltd [2008] 1 WLR 643 at 653C to D.

Mr Caldecott submits that the statement in Cobbold is not now accepted as a sound statement of the law (notwithstanding that it is cited in the notes to the White Book (2011) at 17.3.5 and 17.3.6). He also submits that there are a number of other principles that the court must follow. In Swain-Mason at para [78] and [85] Lloyd LJ said that the judge’s:

“reliance on what Peter Gibson LJ said in Cobbold … is unfortunate, given what had been said in Worldwide Corporation v GPT [[1998] EWCA Civ 1894] and other cases, but the judge had not been shown that decision of the Court of Appeal, and had probably seen no more of Cobbold than the passage which he quoted, it being set out in the notes to the White Book….

… while the statement quoted from Cobbold is entirely proper in itself, it does not provide sure guidance in a case such as this where the amendment had not been prepared for well in advance but came out of the blue, and where permitting the amendment to be made did require the trial to be adjourned.”

In the present case the draft amendment has not been prepared for well in advance. And in the parts which plead actual damage (and the new case in libel) it has come out of the blue. There was no evidence in support of the application, such as is required by CPR Part 23.6(b) (“an application notice must state … (b) briefly, why the applicant is seeking the order”). CPR Part 22 also requires an application notice to be verified by a statement of truth. Applications for permission to introduce at a late stage a new way of putting a case do require an explanation. Mr Caldecott takes no point on the absence of an explanation for those parts of the draft which are directed to meeting points raised in my second judgment. But he does object to the attempt to introduce without any explanation the claim for special damages (and the new claim for libel). The absence of such an explanation is particularly notable in this case, because there have been a number of public statements by or on behalf of the Claimants which appear to be inconsistent with the claim that they have suffered any actual damage.

Mr Caldecott relied on the following passage from Swain-Mason at para [69]:

“The court in Worldwide Corporation v GPT said this …:

"…in previous eras it was more readily assumed that if the amending party paid his opponent the costs of an adjournment that was sufficient compensation to that opponent. In the modern era it is more readily recognised that in truth the payment of the costs of an adjournment may well not adequately compensate someone who is desirous of being rid of a piece of litigation which has been hanging over his head for some time, and may not adequately compensate him for being totally (and we are afraid there are no better words for it) "mucked about" at the last moment. Furthermore the courts are now much more conscious that in assessing the justice of a particular case the disruption caused to other litigants by last minute adjournments and last minute applications have also to be brought into the scales.”

In the present case Mr Caldecott complains that the BBC is being ‘mucked about’ by this late claim which is the subject of repeated attempts by the Claimants to reformulate their claim, starting with the letters sent pursuant to the Pre-Action Protocol, and ending with the present application. I take the expression ‘mucked about’ to be a vivid synonym for a breach of CPR Part 1.3, according to which:

“The parties are required to help the court further the overriding objective”

Further, Mr Caldecott cited the principle in Jameel as recently re-affirmed by Lord Neuberger MR in Lait v Evening Standard Ltd [2011] EWCA Civ 859, [2012] EMLR 4, [2011] 1 WLR 2973 at para [19] as follows:

“in order to keep a proper balance between the Convention right of free expression (arising under Article 10 of the European Convention on Human Rights) and the protection of individual rights, "the court was required to stop as an abuse of process defamation proceedings that were not serving the legitimate purpose of protecting the claimant's reputation... the test [was] whether there was a 'real and substantial tort'": Jameel v Dow Jones [2005] QB 946 at 947 (headnote)”

Mr Spearman submits that the court should have regard to the consequences of accepting Mr Caldecott’s submission. The whole claim in malicious falsehood would remain struck out. He submits that that would be unjust and disproportionate to any delay or fault on the part of the Claimants in formulating their case.

In my judgment the overriding objective requires that permission to amend be refused in this case. For reasons given above, the draft amendment is so vague, and so gravely deficient in identifying the extent of the damage (if any) that is either likely to have been caused (or, now, is said actually to have been caused) by the unfavourable statements which are alleged to be false (as opposed to that caused by those unfavourable statements admitted to be true), that it is impossible to say that there is in the present case a claim that has a real prospect of success (as required by CPR Part 24) or is in respect of a real and substantial tort (as that phrase is used in Jameel). There is nothing to indicate that this is capable of being remedied, whether in the form of witness statements from viewers who might have bought the Roadster, or by any other means.

In my judgment there is no real prospect of the Claimants showing that the alleged falsehoods were calculated to cause (or did cause) damage additional to the damage calculated to be caused (or in fact caused) by the unfavourable statements that are admittedly true. A reasonable prospective buyer would be understandably concerned and put off by facts such as that the range might be significantly less than 200 miles in certain conditions, and that the electric power to the brakes is unreliable. If such a person is concerned by these issues, it is hard to see what, if any, additional concern would arise by reason of the fact that trial car was (falsely) said to have actually run out of power when driven in the Top Gear tests, or by the fact that it was (falsely) said that the brakes had failed.

What the Claimants say they want is proof that the statements they allege to be false are false. This is in substance a claim for a declaration of falsity. At the hearing in October Mr McCormick explained that they were not concerned that the damages might be modest. Mr Caldecott cites a public statement made by the Vice President of Communications, Mr Reyes, on 30 March 2011 on Wired.com:

“It’s not that we’re hurting. We’ve sold more than 1500 Roadsters and our cars have done more than 10 million miles. The broader issue her is the impact on E[lectric] V[ehicle]s… We’d like them [the BBC] to admit that they lied, and they keep pushing these lies. We just want them to set the record straight”

Rectification of inaccuracies is not the function of the courts unless that can be achieved in the course of proceedings properly brought to enforce a recognised cause of action. It might have been an objective achievable by the use of the BBC Complaints Procedure. The Claimants did invoke that procedure, although without success. Complaints about accuracy cannot all be advanced so as to amount to causes of action for defamation or malicious falsehood. If they cannot be pleaded adequately to give rise to one or other of those causes of action, it is not open to the court to relax the criteria to enable the claimant to proceed in any event.

The proposed particulars of damage include claims in respect of a model other than the Roadster. It is the Model S, which was not in production at the time of any of the broadcasts complained of, and is not yet in production. Mr Whitaker states that the Model S is a family car which is expected to be sold to the public in the middle of 2012. Another model, the Model X Crossover is to follow, which will have the functionality of a minivan with an SUV design.

In the draft particulars there is included at para 9(5):

“(h)

Reservations for the Tesla Model S Sedan (which require the payment of a refundable deposit of £4,000) have been lower than expected in the UK [and there follows a table comparing reservations in 15 other countries with reservations in the UK]. The level of reservations in the UK is far lower than expected on the basis of population and cultural factors. The case for each Claimant is that the reason for the lack of sales in the UK when compared to other countries is the influence of the item, which although available in those countries is far more likely to have been influential in the UK (both in terms of the number of viewers and the impact upon those viewers)… That the item probably did have this effect is demonstrated by an e-mail dated May 4, 2010 from a prospective purchaser of the Model S: ‘I was concerned at the technical problems the Roadster had on Top Gear’s test drive. What have you done to address the braking and battery problems’”.

Mr Caldecott submits that this draft pleading suffers from the same defect as the rest of the draft particulars (in failing to plead that the alleged damage is the result of the falsehoods as opposed to the adverse statements admitted to be true). But he makes the additional point that any damage claimed in respect of the Model S is too remote. The particulars are of damage said to be likely to result from a malicious falsehood about a Roadster, and not about any other model. The words upon which the action is founded refer to the Roadster. They are not capable of referring, and do not refer, to the Model S.

Mr Spearman submits that damages may be recovered for what the Claimants refer to as the reputation of their brand.

In my judgment there are cases where the malicious falsehood refers to more than one product, and even to the whole of a claimant’s business. But in this case the Top Gear programme was about the Roadster, and nothing else. It was not capable of being understood as referring to the Claimants’ business, or to any other model they might produce, still less a model not in production at the time of the test. I would on that ground have refused permission to amend in so far as claims were to be advanced in respect of any model other than the Roadster.

Mr Caldecott submits that no permission should be given to include a new claim for actual damage because there is no evidence in support of that application. There is no explanation why it is advanced for the first time after so long a period. The only explanation offered is that put forward by Mr Whitaker which was in response to evidence for the BBC. He stated that it is in response to the challenge to the way the claim was pleaded under s.3 of the 1952 Act.

Mr Caldecott submits that that explanation is unsatisfactory for a number of reasons. One reason is that the challenge to the case under s.3 of the 1952 Act had been first notified to the Claimants on 30 June 2011, months in advance of the hearing in October 2011.

In my judgment the Claimants have given no satisfactory explanation for the decision to seek to introduce at this late stage a new claim for actual damage. Moreover, the grounds by reference to causation on which the BBC challenges the Claimants’ claim under s.3 of the 1952 Act also apply to the draft particulars of special damage. But in the light of my other decisions, this factor adds nothing to the reasons why I refuse permission to amend.

Mr Caldecott submits that in so far as the draft particulars of damage include a comparison between the Roadster and the Elise, then that is flawed as a basis for a claim for damages. This is a complicated point, and one which I find it disproportionate to investigate, having regard to the decisions that I have reached on other points.

The defamatory meaning which the Claimants attributed to the words complained of in the Particulars of Claim was:

“that each of the Claimants had intentionally and/or recklessly, grossly misled potential purchasers of the Roadster by claiming that it had a range of about 200 miles when fact its true range was in the order of 55 miles”.

In my first judgment I recited that there was pending an application that the case by tried with a jury. It followed that I could not rule on the actual meaning of the words complained of, but only on (in the words of PD53 para 4.1):

“(1)

whether a statement complained of is capable of having any meaning attributed to it in a statement of case;

(2)

whether the statement is capable of being defamatory of the claimant;

(3)

whether the statement is capable of bearing any other meaning defamatory of the claimant.”

I set out the principles which, as the parties agree, are applicable to a determination of meaning, namely those derived from Jeynes v News Magazine Ltd [2008] EWCA Civ 130 at [14].

When Mr McCormick addressed me I invited him to put forward any other defamatory meaning which the Claimants might wish to attribute to the words complained of. He put forward three alternative meanings, each of them in effect derived by deleting one or more words in the pleaded meaning. The lowest of the three alternatives was thus:

“that each of the Claimants had intentionally and/or recklessly, grossly misled potential purchasers of the Roadster by claiming that it had a range of about 200 miles when fact its true range was in the order of 55 miles”.

As I observed in my judgment, each of the meanings advanced by Mr McCormick was a Chase Level 1 meaning (actual guilt – see Chase v News Group Newspapers Ltd [2003] EMLR 11 para [45]).

I held that:

“the words complained of were wholly incapable of conveying any meaning at all to the effect that the claimants intentionally or recklessly misled anyone… because the contrast between the style of driving, and the nature of the track on which the driving takes place, as compared with the conditions on a public road, is so great that no reasonable person watching the programme could understand that the performance on the track is capable of direct comparison wit the performance, including the range, on the road”.

In my judgment I referred to the possibility of the Claimants making an application for permission to amend if they wished to advance any other case. But the order as drawn up striking out the case in libel is not expressed to be subject to the making of any such application.

Mr Spearman explained that the meaning for which he now seeks permission to amend is one that results from his being recently instructed. It is a Chase Level 2 meaning that:

“there were reasonable grounds to suspect that each of the Claimants had intentionally and/or recklessly, grossly misled potential purchasers of and significantly misrepresented the range of the Roadster by claiming that it had a range of about 200 miles when in fact that its true range on the Top Gear Track was only in the order of 55 miles”.

This appears to be a meaning that there were reasonable grounds to suspect that the Claimants had acted dishonestly. But Mr Spearman disavowed an allegation of reasonable grounds to suspect dishonesty. The word ‘intentionally’ was intended to convey that they had intentionally made a representation which was in fact incorrect, not that they had intentionally misrepresented the facts.

He submits that there is an offence of giving a false trade description, and it is this which the words complained of convey. The trader’s state of mind is relevant only to a possible defence of reasonableness.

In my judgment this meaning is one that the words are incapable of bearing for the same reasons as the meanings I considered and dismissed in my first judgment.

As any reasonable motorist knows, a manufacturer’s statement about the range of a motor vehicle is always qualified by a statement as to the driving conditions under which that range may be expected. For example, one range may be given for urban driving, and another for other conditions. But such statements are rarely if ever given to the public by reference to racing on a test track.

Further, if the Claimants do not put forward a meaning which includes a reference to their state of mind, whether it be intentional, reckless or negligent, then it would not be defamatory simply to say that there were reasonable grounds to suspect that they misled prospective customers. I do not accept that any reasonable viewer of the Top Gear programme could understand that there was an allegation that the Claimants had given a false trade description. The newly proposed meaning is not capable of being defamatory at all, or, if it is, it is not capable of being a sufficiently serious defamatory meaning to constitute a real and substantial tort.

Mr Caldecott submits that there is a further reason for refusing permission to amend. The court should view with suspicion a meaning advanced for the first time over three years after the original broadcast and over seven months after the service of the Defence. And as the Court said in Woodhouse v Consignia [2002] 1 WLR 2558 at para [55]:

“There is a public interest in discouraging a party who makes an unsuccessful interlocutory application from making a subsequent application for the same relief, based on material which was not, but could have been, deployed in support of the first application”.

The Claimants could have advanced a Chase Level 2 meaning in October, along with the other alternatives that Mr McCormick advanced.

In Dell'olio v Associated Newspapers Ltd [2011] EWHC 3472 at para [30], after referring to the Practice Direction para 4.1(3) (“whether the statement is capable of bearing any other meaning defamatory of the claimant”), I said that:

“A court considering "whether the statement is capable of bearing any other meaning defamatory of the claimant" cannot be required to proceed in a vacuum. There may be obvious potentially defamatory meanings … which it would be pointless for the court to consider, if the claimant does not raise them.”

In accordance with para 4.1(3) I could myself in October have considered possible Chase Level 2 meanings, even though they were not advanced by Mr McCormick.

But the choice of what meaning to attribute to words complained of is one of the most sensitive issues which a libel claimant and its advisers must consider. In Mr Caldecott’s words “meaning is the critical starting point for any defamation claim”. Too low a meaning may not be worth pursuing. It may result in a successful plea of justification or truth, or an award of damages which is insufficient to vindicate a reputation. Too high a meaning may risk failure in the action. Too general a meaning may expose the claimant to a plea of justification based on matters other than those expressly referred to in the words complained of. Some meanings which the words are capable of bearing may be meanings which are either admittedly true, or present a substantial risk of being proved to be true. Only the claimant or his advisers will be in a position to judge where the pitfalls are that the claimant may need to avoid in his choice of meaning. The court must have regard to party autonomy in exercising its powers under para 4.1(3).

Further, there is a public interest in discouraging a party from making serial applications to the court, advancing a series of different meanings, any of which could have been put forward at the original application.

Mr Caldecott submits that in this respect also the BBC is being ‘mucked about’. The Claimants are contriving to re-introduce by way of the libel action the range issue which they have never been able to complain of as a falsehood.

In the present case I do not have to decide whether I would have refused the application for permission to amend on this ground alone.

It is to be noted that, since this application is made at a time when the libel action is struck out, so there is no question of trial by jury, it follows that it would be open to me to find that the proposed Chase Level 2 meaning is not in fact the meaning that the words complained of bear. That is what I would find, if I were wrong on the question of capability, and gave permission to amend. The new meaning is an attempt to convert a statement about the product, which is damaging but true (and so not actionable), into a statement about the producer that is untrue and defamatory. This is not the way that the putative viewer is to be taken as approaching such a broadcast.

For the reasons set out above, the Claimants’ application for permission to amend the Particulars of Claim will be dismissed.