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IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mr. Justice Tugendhat

[2011] EWHC 3659 (QB)

Mr. Richard Spearman Q.C. and Mr. William McCormick Q.C. (instructed by Carter-Ruck) for the appellants Mr. Andrew Caldecott Q.C. and Ms Catrin Evans (instructed by BBC Litigation Department) for the respondent Hearing dates : 15th and 16th January 2013 ____________________

LORD JUSTICE MAURICE KAY Vice-President of the Court of Appeal, Civil Division) LORD JUSTICE MOORE-BICK and LORD JUSTICE RIMER ____________________

Lord Justice Moore-Bick :

Background

"This car, then, really was shaping up to be something wonderful. But then . . . "

At this point there is the artificial sound of a motor slowing down and stopping, followed by a shot of Mr. Clarkson sitting in what has become a stationary vehicle saying:

"Oh! . . . Although Tesla say it will do 200 miles, we worked out that on our track it would run out after just 55 miles and if it does run out, it is not a quick job to charge it up again."

There follows a shot of people pushing one of the Roadsters into the hangar and Mr. Clarkson plugging in the cable in order to re-charge it.

"I don't believe this . . . the motor has overheated and I have reduced power."

That is followed by a shot of a Roadster stationary on the track and then Mr. Clarkson continues:

"While it cooled down we went to get the silver car out again (followed by a shot of the car in the hangar with the bonnet up) only to find that while it was being charged its brakes had broken. So then, with the light fading, we had no cars at all.

I did think that the Teslas would bring a bit of peace and quiet to our track with their electric motors. Didn't think it would be this much peace and quiet though. That is the sound of silence.

What we have here, then, is an astonishing technical achievement. The first electric car that you might actually want to buy. It's just a shame that in the real world it doesn't seem to work

I tried to be fair. I did try, but it was  it didn't work"

"although Tesla say it will do 200 miles, we worked out that on our track it would run out after just 55 miles"

were defamatory because they meant that Tesla had intentionally or recklessly grossly misled potential purchasers of the Roadster by claiming that it had a range of about 200 miles when in fact its true range was in the order of 55 miles.

"(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 overheating.

(5) There was no time at which neither Roadster was available for driving."

The judgments below

(i) to allege that the words relating to the car's range previously complained of meant that

"there were reasonable grounds to suspect that [Tesla] had intentionally and significantly misrepresented the range of the Roadster by claiming that it had a range of about 200 miles in that its range on the "Top Gear" track was only 55 miles;"

(ii) to provide particulars (running to 12 pages) of the claim under section 3 of the Defamation Act; and

(iii) to add a claim for special damages in the sum of US$3.9 million.

The appeal

Libel

(a) The original allegation

"(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article or viewing the programme once.

(2) The hypothetical reasonable reader (viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (Emphasis added.)

(3) While limiting its attention to what the defendant has actually said or written the court should be cautious of an over-elaborate analysis of the material in issue.

(4) The reasonable reader does not give a newspaper item the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.

(5) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable reader the court is entitled (if not bound) to have regard to the impression it made on them.

(6) The court should not be too literal in its approach.

The above list was broadly followed by the Court of Appeal in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14], save that it added the important point that the hypothetical reader is taken to be representative of those who would read the publication in question."

(b) The proposed amendment

Malicious falsehood

(a) The claim for general damages - pleading

"32. . . . 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."

"59. . . . 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."

(b) The claim for special damages

(c) The claim for general damages  prospects of success

Lord Justice Rimer :

Lord Justice Maurice Kay :