Reference:  EWHC 2760 (QB)
Court: High Court QBD
Judge: Tugendhat J
Date of judgment: 28 Oct 2011
Summary: Malicious Falsehood - Particulars of Claim - Particulars of Damage - Defamation Act 1952 s. 3
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Andrew Caldecott QC (Respondent)
Instructing Solicitors: Carter Ruck for the Claimants, BBC Litigation Department for the Defendant
The Claimants are manufacturers and distributors of an electric sports car – the Tesla Roadster. Tesla brought a claim in malicious falsehood against the BBC in relation to an edition of Top Gear which featured the Roadster. As the programme was first broadcast in December 2008, the one year limitation period meant the claim was limited to repeat broadcasts of the programme on the BBC (including online) and on the freeview channel “Dave”. The Top Gear feature on the Tesla Roadster was positive about the car but then allegedly showed the car running out of power, breaking down and overheating. The Claimants pleaded no actual damage in their Particulars of Claim, relying on section 3(1) of the Defamation Act 1952 which states that it is not necessary to allege or prove special damages if the words complained of are in permanent form and “are calculated to cause pecuniary damage” to the Claimant. It was common ground that this meant “more likely than not” to cause pecuniary damage. The BBC’s case was that this was wholly inadequate pleading and they applied to have the claim struck out or for summary judgment to be given in its favour. In addition to the lack of particularisation of damage, the BBC relied on formal financial statements filed by the Claimants in the US in 2010 which made no mention of the programme or any damage caused by it, and press releases by the Claimants stating that sales had risen.
Whether the Claimants, who were entitled to rely on probable rather than actual damage under s 3 of the Defamation Act 1952 in a malicious falsehood claim, should have their claim struck out, or summary judgment given in favour of the Defendant, because they failed to particularise the allegedly probable damage caused and state the facts relied on in support of that plea of damage.
Where a trader such as the Claimants makes a claim in malicious falsehood and relies, as they are entitled, on probable rather than actual damage under s. 3 Defamation Act 1952, the Claimant must nevertheless give particulars of the nature of the alleged probable damage and the grounds relied on for saying that it is more likely than not to have been caused by the malicious falsehood.
There were also particular difficulties in this case: in relation to causation because the programme had been repeated a number of times over a lengthy period since 2008, but a claim could only be brought in respect of broadcasts after March 2010; the subsequent statements of the Claimants; and the fact that Top Gear broadcast also included very positive coverage of the Tesla Roadster.
The claim was so lacking in particularity that it could not be allowed to proceed. The claim to be struck out unless the plea of damage was amended by agreement or with the permission of the court.
This case clarifies the law in relation to pleading probable damage under s 3 Defamation Act 1952 in malicious falsehood claims. Probable damage cannot simply be inferred it must be properly particularised and the facts and matters supporting the pleaded probable damage set out. Some hypothetical examples were given: the cost of advertising and publicity to counter the effects of the alleged falsehood; figures for loss of sales; or, where items have been sold at a lower price than they would have otherwise been sold at, the difference between the actual price sold at and the higher price at which it is said they would have been sold but for the publication of the alleged falsehood. Claimants will need to consider carefully the available evidence of probable damage and plead fully, or risk being struck out for want of particularisation.