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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Tesla Motors Ltd & Anor v British Broadcasting Corporation [2011] EWHC 2760 (QB) (28 October 2011) URL: http://www.bailii.org/ew/cases/EWHC/QB/2011/2760.html Cite as: [2011] EWHC 2760 (QB) |
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QUEEN'S BENCH DIVISION
London, WC2A 2LL |
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B e f o r e :
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(1) Tesla Motors Ltd (2) Tesla Motors Inc |
Claimants |
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- and - |
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British Broadcasting Corporation |
Defendant |
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Andrew Caldecott QC and Catrin Evans (instructed by BBC Litigation Department) for the Defendant
Hearing dates: 19 October 2011
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Crown Copyright ©
Mr Justice Tugendhat
"(1) The First Claimant is a limited liability company registered in the jurisdiction and a wholly owned subsidiary of the Second Claimant which is a corporation registered in the United States of America.
(2) The Second Claimant has, and at all material times has had, an established reputation around the world, including the jurisdiction, as the manufacturer and distributor of electric powered automobiles, one model being an electric powered sports car known as the Tesla Roadster ("the Roadster").
(3) The First Claimant has, and at all material times has had, an established reputation within the jurisdiction, as the company responsible for the Second Claimant's European operations which include (a.) the First Claimant's headquarters in Maidenhead (covering Roadster sales administration and marketing support for Tesla stores and sales operations in the UK and other countries in Europe including Germany, Switzerland, Austria, Denmark, Netherlands, France, Monaco, Italy and Spain) together with finance and human resources support, (b) manufacturing operations in Hethel (vehicle production and supply chain management), (c) logistics in Wymondham (pre delivery vehicle inspection, warehousing of manufacturing and service parts, shipping of vehicles to Tesla stores in UK and throughout Europe), and (d) the First Claimant's retail store in central London."
THE TORT OF MALICIOUS FALSEHOOD
"The essentials of this tort are that the defendant has [1] published about the plaintiff [2] words which are false, [3] that they were published maliciously, and [4] that special damage has followed as the direct and natural result of their publication. As to special damage, the effect of Section 3(1) of the Defamation Act 1952 is that it is sufficient if the words published in writing are calculated to cause pecuniary damage to the plaintiff. Malice will be inferred if it be proved that the words were calculated to produce damage and that the defendant knew when he published the words that they were false or that they were reckless as to whether they were false or not."
"3(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 any other permanent form...."
THE PUBLICATIONS OR BROADCASTS
"The broadcasts have been made and/or caused and or permitted by the Defendant in the following ways: (1) online [and the To Gear website address is given]: (2) on " Dave ja vu" and other television channels; (3) via sales of a boxed sets of Top Gear season twelve programmes;... inside the jurisdiction. The Claimants are unable at present to set out the precise details of the extent and nature of each of the above categories of broadcast. They will plead further following disclosure and/or the provision by the Defendant of further information relevant to this issue, which information is readily available to it. Pending the provision of such disclosure/information the Claimants rely on the inference that, because 'Top Gear' is a popular programme... within the jurisdiction, each of the categories of broadcast set out above will have been substantial."
BBC 2: 21 December 2008 19.03 hrs, 30 August 2009 19.59 hrs, 14 March 2010 19.00hrs
BBC 2 Scotland: 13 March 2010 18.29hrs
BBC 3: 24 January 2009 20.01 hrs, 24 April 2009 19.01 hrs
Dave: 14 Broadcasts on and between 12 January 2009 and 29 April 2009, and seven broadcasts on and between 4 January 2010 and 28 March 2010.
THE ALLEGED FALSEHOODS
"(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."
"wave goodbye to dial up and say hello to the world of broadband motoring, 12 1/2 rpm I cannot believe this. That is biblically quick. This car is electric.... literally. The top speed may be only 125 mph but there is so much talk it does 0 to 60 in 3.9 seconds. Not bad for a motor that is the size of a water melon and only has one moving part".
"This car really was shaping up to be something wonderful but then ... (artificial dying motor sounds and music slowing down and stopping)... although Tesla say it will do 200 miles we have 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. (Footage of people pushing the Roadster into the hangar followed by Jeremy Clarkson inserting the charger lead into the Roadster)..."
"perhaps then the best idea is to have two Teslas, so you can use one whilst the other is charging. Unfortunately that is quite an expensive solution and it doesn't appear that you get much reliability either. I don't believe this... the motor has overheated and I have reduced power, (shot of Tesla sitting on the track) While it cooled down we went to get the silver car out again ,.. shot of back of silver Roadster in the garage with its bonnet up) only to find that while it was being charged its brakes had broken (shot of empty track) so then with the light fading we had no cars at all."
"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."
"... The second Roadster was at no time 'immobile' due to overheating. It did not overheat (but rather reduced the torque available to prevent overheating) and ... at all times it remained capable of being (and was driven) by Mr Clarkson, including being driven by him to the point it was shown sitting immobile on the track."
"The first silver car had begun recharging at about 11am... the silver car came off charge sometime not long after 2pm... Before going back onto the track there was the problem of its brakes which lasted from 2.20 pm until 3pm... Therefore as at 2.20 pm the grey car was cooling down after overheating and the silver car was still unavailable because the brakes were broken and were being fixed. The cooling down took about 15 minutes and accordingly during that time neither car was able to be used for filming..."
THE PLEA OF DAMAGE
"9. Each of the broadcasts was and is calculated to cause pecuniary damage to each of the claimants in respect of its business".
SUBMISSIONS FOR THE BBC
"Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged."
"42. The principle identified in Jameel consists in the need to put a stop to defamation proceedings that do not serve the legitimate purpose of protecting the claimant's reputation. Such proceedings are an abuse of the process. The focus in the cases has been on the value of the claim to the claimant; but the principle is not, in my judgment, to be categorised merely as a variety of the de minimis rule tailored for defamation actions. Its engine is not only the overriding objective of the Civil Procedure Rules but also, in Lord Phillips' words, the need to keep "a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation"... 45. ... The balance to be struck between public interest and private right is increasingly to be seen as a function of our constitution; and the law of defamation is increasingly to be seen as an aspect of it."
"the Top Gear episode was negative, but after a few weeks, the mainstream media indicted Top Gear's credibility - not Roadster's. This mitigated damage to Tesla's nascent and developing image in the UK. But re-runs and video on demand versions of the programme online continue to expose millions of viewers to Mr Clarkson's inaccurate portrayal of Tesla and these viewers often take it for fact not fiction. Left unchecked by the media (after all, Mr Clarkson's drive in an electric car is now very old news). The unedited re-runs don't reflect Top Gear's acknowledged manipulation of the footage and the facts".
"Since it first aired in 2008 our client has suffered irreparable harm as a result of the numerous false, malicious and defamatory statements made in the programme. With each subsequent publication... there is increasing damage to our clients' reputation and the sales of Roadster cars".
"Our success could be harmed by negative publicity regarding our company or products. From time to time, our vehicles are evaluated by third parties. For example the show Top Gear which airs on the British Broadcasting Corporation did a review of the Tesla Roadster. Top Gear is one of the most watched automotive shows in the world with an estimated 350 million viewers worldwide and is broadcast in over 100 countries. The review of the Tesla Roadster included a number of significant falsehoods regarding the car's performance, range and safety. Such criticisms create a negative public perception about the Tesla Roadster, and to the extent that these comments are believed by the public, may cause current or potential customers not to purchase our electric vehicles which would materially adversely affect our business, operating results financial condition and prospects", (emphasis added).
"We are very pleased to report steady top-line growth and significant gross margin driven by the continued improvement in Roadster orders and our growing power trained business" said Elon Musk - CEO of Tesla Motors. "Roadster orders in this quarter hit a new high since the third quarter of 2008, having increased over 15% from last quarter. While some of this is due to seasonal effects associated with selling a convertible during the summer months, we are pleased with the global expansion of the Roadster business and the continued validation of Tesla technology evidenced by our new and expanding strategic relationships", (emphasis added)
"People in Europe and Japan probably have another six months to place orders for the Roadster... If somebody has an interest in buying a Roadster they had best put in an order very soon".
"This [that is to say the proceedings] is our last recourse. It's not that we're hurting. We sold more than 1,500 Roadsters and our cars have done more than 10 million miles. The broader issue here is the impact on EVs [electric vehicles].... We'd like them to admit that they lied, and they keep pushing these lies. This is not about money. We just want them to set the record straight. "
"the publication of the false and defamatory statements comprised in the words images and sounds on the Top Gear programme complained of have seriously damaged the company's reputation".
"The continuing publication of the Top Gear programme has tainted the launch of future Tesla vehicles. ... A car company's entire reputation is in its brand and our brand has been unjustly wrongly and without basis torn apart by the Top Gear programme, .,.".
"The Roadster continues to be a success for Tesla. However, whether we would have sold them sooner if not for Top Gear or sold them for more, we do not know. However, it is fundamental (and obvious) non sequitur to assert that this precludes the existence of damage from the programme, Tesla believes that this success has been in spite of the damage done by the programme and reflects the hard work of its staff in countering that damage. The Top Gear show has had a reputational impact on the company as a whole. As such the perceptions created by the show have an ongoing impact on potential customers demands for new models".
"In addition to the lies and false implications, the show also used two pre-production 2008 cars that do not nearly have the level of refinement of today's cars, yet there is no time stamp or other obvious date on the story",
"The whole purpose of section 3 was to give the plaintiff a remedy in malicious falsehood despite the difficulty of proving actual loss. A plaintiff is seldom able to call witnesses to say they cease to deal with him because of some slander that had come to their ears. In consequence actions for malicious falsehood have become extremely rare... section 3 was enacted to right this injustice. The section would fail in its purpose if, whenever relied on, it could lead only to an award of nominal damages".
"both concern the protection of reputation albeit one protects the reputation of persons and the other the reputation of property, typically in the form of the goodwill of a business".
DISCUSSION
THE DEFENCE OF ABUSE OF PROCESS
THE DEFENCE OF WAIVER ETC.
"By their conduct since the original broadcast the Claimants have lost any right to contend that the programme was actionable and/or it is an abuse of process for the Claimants to claim damages or an injunction in the circumstances pleaded below
"If a claimant says in clear terms that he does not want the publication to be amended or withdrawn, or even that he does not care whether it is amended or withdrawn, then at least as at present advised I consider he could be held to have lost any right to contend that the defendant's failure to amend or withdraw the article was actionable: it could be a simple case of waiver or estoppel, or if there was consideration, of contract".
CONCLUSION