I made the mistake of hitting the "Show ignored messages"
The court did not find that British humour was relevant. Tesla lost primarily because it couldn't prove that it suffered monetary damages due to recent repeat episode showings of TG that were within the statute of limitations period. A key problem was that the original and many repeated episodes were so long ago that they were not actionable.
Another problem was Tesla sales of the Roadster were due to be discontinued soon anyway, so no further loss there.
Tesla lost (in this case denying it the ability to even go to trial) on a legal technicality. Not on the merits. TG lied and it was right for TG to have expend legal resources to hide behind the statute of limitations.
Below is part of what court actually said.
I note that the opinion is astonishingly lazy rambling and poorly written. It would be fine example of bad conclusory opinion writing :
from :
Tesla Motors Ltd & Anor v British Broadcasting Corporation (BBC) [2013] EWCA Civ 152 (05 March 2013)
At the heart of the judge's concerns lay the question of causation. Following the original broadcast on 14thOctober 2008 there were 27 repeat showings of the programme before the earliest actionable broadcast, so there was every reason to think that, if the programme was capable of causing Tesla damage at all, some, possibly most, of that damage must already have been caused by the time the statements complained of were published. It was also possible that earlier, time-barred, broadcasts might be responsible for some damage incurred after the date of the broadcasts that were the subject of the action. Added to that is the potential for damage to have been caused by any unfavourable statements about the Roadster that were admitted to be true (for example, the time required to re-charge the batteries and the consequences of overheating). Although for the purposes of a claim under section 3 it was not necessary for Tesla to identify how much damage had been caused by the actionable falsehoods, it was for those reasons necessary in this case for it to describe in general terms the nature and extent of the loss said to be likely to result from the publications which were the subject of the action.
. . .
I can see that the court might find it likely that some potential customers would be deterred from buying a Roadster by the actionable statements, even though they had not been deterred by any of the non-actionable statements. It might also be said, however, that the prospects of satisfying the court that the loss likely to be caused by the actionable falsehoods was significant is so small that in reality no substantial tort has been committed. . . .
(b) The claim for special damages
In paragraph 10 of the proposed amendment Tesla alleges that it has incurred a loss of US$171,000 in respect of parts which it obtained for building right-hand drive versions of the Roadster destined for the UK market but for which it had no use after sales fell off as a result of the false statements. More significantly, it alleges that it has lost the profits it would have earned on the sale of an additional 200 Roadsters which it would otherwise have made. In support of these claims Tesla relies on paragraph 9(5) of the proposed amendment, which purports to support the claim for general damages. Mr. Caldecott submitted that that paragraph does not support the conclusion that the falsehoods complained of have caused Tesla any identifiable loss.
In paragraph 9(5)(a) Tesla alleges that sales of the Roadster within the UK have been lower than expected and, in particular, have fallen well below the level of sales in the EU and the United States. For those purposes it relies on a comparison between sales of the Roadster and sales of the Lotus 'Elise'. In the three years 2009-2011 the number of Roadsters sold in the EU expressed as a percentage of the number of Lotus Elises sold in that market is put at 57% and in the United States 96%, whereas the number sold in the UK is put at only 7%. The marked difference is said to be attributable to the 'Top Gear' film, which is said to have had a much greater influence in the UK market than elsewhere.
Although I accept for present purposes that Tesla will be able to establish the sales data set out in paragraph 9(5), the conclusions which it seeks to draw from them are in my view highly questionable. Lotus is a well-known marque in the UK with a strong following. There is little direct comparison between a petrol-engined sports car manufactured by a company with several dealerships and selling at about £28,000 and an electric sports car with far fewer dealerships selling at about £90,000. Moreover, cultural factors are likely to have played some part in determining the level of sales in different countries of a novel vehicle such as the Roadster.
In support of the assertion that the relatively low level of sales in the UK is due to the programme Tesla sets out in paragraph 9(5)(b) seven examples of what it says has been the adverse reaction of the public based on having watched the programme. However, although it is alleged that many of those who approached Tesla at displays referred to the programme (as might be expected), none of the examples bears out the assertion that any potential customer was deterred by it from ordering a car. There follow in paragraph 9(5)(c) what are said to be ten examples between March 2010 and November 2011 of potential customers' expressing concern about the Roadster based on the 'Top Gear' film. However, many of the examples do not relate to potential purchasers from the UK and none of those that do adequately link an actionable falsehood to a lost sale. The two specific allegations of cancelled orders pleaded in paragraph 9(5)(d) can only relate to statements made outside the limitation period.
In paragraph 9(5)(e) Tesla refer to a "roadshow" held in London in June 2010 as part of preparations for its flotation on the stock market. It is alleged that although overall 75% of those who had expressed initial interest in buying shares in the company actually requested an allocation, in London only 36% did so. However, it is not at all clear how a reduction in investor confidence, even if it could be shown to be due to the programme, could have contributed to the losses claimed.
. . .
In my view the case pleaded in support of the claim for special damages is, to say the least, very thin on its own terms, but in addition to that it suffers from a more fundamental problem to which I have already referred in the context of the claim for general damages, namely, the difficulty of showing the extent to which any loss that can be established was caused by actionable statements rather than statements that for one reason or another are not actionable. This is a particularly acute question given the number of times the film was broadcast before the beginning of the limitation period. The proposed amendment proceeds on the footing that the failure to sell an additional 200 vehicles was entirely due to the statements complained of, but that is quite unrealistic. If there has been an effect on sales, some of that effect must be due to statements that are no longer actionable, but, as the judge pointed out in his paragraph [66], the pleading does not attempt to identify what part of the loss was caused by the actionable statements. I agree with the judge, therefore, that the proposed amendment is not adequately particularised.
Moreover, on the basis of the material currently before the court I do not think that there is any real prospect of Tesla's being able to demonstrate at trial that it has suffered any quantifiable loss by reason of any of the actionable statements. Again, the difficulty is one of establishing that any particular loss was caused by one or more of the actionable falsehoods rather than by one or more of the statements that are not actionable. Moreover, Tesla's case in that respect is undermined both by the various public statements it made in the period following the first broadcast (in which it insisted that it had not suffered any harm as a result) and by its failure to include a claim for special damages in the original particulars of claim. It is difficult to believe that, if Tesla had suffered a loss of almost US$4 million, it would not have realised that it had suffered a substantial loss, would have investigated the position and would have been able to plead its case at the outset. The suggestion that Tesla was not in a position to formulate the claim until this stage of the proceedings is scarcely plausible. For all these reasons I am not persuaded that the case which it now seeks to advance by way of amendment has a real prospect of success and in those circumstances it is not one which in my view it should be permitted to pursue to trial. That was the view expressed by the judge in paragraph [82] of his judgment and I think he was right. For all those reasons I do not think that it would be right to give permission for the amendment necessary to pursue a claim for special damages.
(c) The claim for general damages – prospects of success
I can now return to deal finally with the claim under section 3 of the Defamation Act. If, as I think, the claim is adequately pleaded in paragraphs 9(1) - (4) of the proposed amendment, it may be said that permission to make the amendment should be given so that the court at trial can decide whether the claim is made out and, if so, what is the appropriate award of damages. However, this is a case in which there are grave difficulties in identifying any pecuniary loss that the actionable false statements were calculated to cause. In my view the allegations in paragraph 9(5), far from lending support to Tesla's case, tend to emphasise that it is likely to be very difficult to persuade the court that the actionable statements, coming as they did so long after the first showing of the film, were calculated to cause any significant loss. It is at this point that the principles enunciated in Jameel v Dow Jones are potentially relevant.
. . .
The judge seems to have taken the view that there was in this case no real and substantial tort in respect of which Tesla could sue and that the proceedings therefore amounted to an abuse of process (paragraph [82]). He did so because he considered that Tesla had no real prospect of showing that the actionable falsehoods were calculated to cause it any damage over and above that caused by the non-actionable statements. For my own part I would hesitate to describe the present proceedings as an abuse of process in the ordinary sense, but for the reasons I have given I do not think that Tesla has sufficient prospect of recovering a substantial sum by way of damages to justify continuing the proceedings to trial. Nor do I think that this is a case in which the court would be at all likely to grant an injunction to prevent further publication of the film. Production of the Roadster was due to cease in 2012 in any event and it must be very doubtful whether by the time the case came to trial any purpose would be served by restraining the BBC from continuing to show it. In my view this provides an important ground of distinction between the present case and that of Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40, [2002] 1 WLR 3024, to which Mr. Spearman drew our attention. It follows that I am not persuaded that the case which Tesla seeks to make by the proposed amendment has any real prospect of success, or, if successful, is likely to yield any benefit to Tesla that can justify the devotion of the substantial resources in terms of costs and the use of court time that its determination would require. I am therefore satisfied that the judge was right to refuse permission for the amendment.
When considering whether to grant permission to amend two closely related factors are the nature of the amendment and the stage of the proceedings at which the application is made. Mr. Caldecott submitted that the present application was made at a late stage and without any adequate explanation for the delay. For my own part I do not think that the application to amend in this case was made late in the ordinary sense. Although particulars of claim and a defence have been served, there has been no case management conference and directions have not been given for preparation for trial. There has been no disclosure and no exchange of witness statements. In truth the proceedings are still in their infancy and I can see no grounds for thinking that the proposed amendment would be likely to have a disruptive effect on the progress of the proceedings. Accordingly, if I were satisfied that the claim had a real prospect of success, I would not refuse permission to amend on that ground. As it is, however, for the reasons I have given I do not think that the prospects of success are sufficiently great to justify granting permission to make the proposed amendment.
For all these reasons I would dismiss the appeal.
Lord Justice Rimer :
I agree.
Lord Justice Maurice Kay :
I also agree.
