Libel suits in the UK are astonishingly expensive to boot.
Congratulations Tesla, on lining the pockets of Carter-Ruck at your expense and causing the BBC to spend a small fortune on their own legal costs in pursuit of this pointless case.
Senior barristers, or in Scotland senior advocates. Usually over 10-12 years at the bar.
We have a system where in higher courts people are represented directly by lawyers but by barristers/advocates - the theory is that they have a primary duty to the court and not to the client. A lawyer will instruct a barrister/advocate to run a case - in more serious cases a QC (senior) will be used along with a junior barrister/advocate.
NB My wife qualified as an advocate in Scotland - best bit being that when they are training (mostly following a qualified advocate around for a year as an unpaid assistant) you are known as an advocates devil. The whole process of training is known as devilling and the advocate training you is your devil-master. :-)
Expensive top flight barristers* with lots of experience (10-15 years minimum) that are recommended and appointed QC by the Lord Chancellor. They take precedence over other barristers and tend to be very expensive, experienced and with a proven case history and reputation. You can tell them because they get to wear silk gowns (sometimes being elected is known as "taking the silk")
Kinda the barrister equivalent of being elected to the National Academy of Sciences or a Fellow of the Royal Society.
* Barristers are one of two types of lawyers in the UK (the other being solicitors) they do most of the court-room advocacy etc.
Yes, but it's very rare for the winner to be able to recover their full costs. The loser can dispute the costs, which then requires more legal /court time to put a "fair" value on the winner's costs, which in itself can cost a small fortune for a complex case. The whole libel system is an expensive nightmare for anyone caught up in it frankly.
Depending on the case, the judge can order that the loser pays more if they feel the case was fraudulent, misleading, etc.
See Samsung vs Apple, initially Apple didn't have to pay Samsung's fees, but after Apple annoyed the judge with their non-apology apology, the judge ordered that Apple pay [1]:
As to the costs (lawyers' fees) to be awarded against Apple, we concluded that they should be on an indemnity basis. Such a basis (which is higher than the normal, "standard" basis) can be awarded as a mark of the court's disapproval of a party's conduct, particularly in relation to its respect for an order of the court. Apple's conduct warranted such an order.
Why go the lawsuit route - that just brings attention back to a bad review. If the claims of the BBC are false, play the media - suggest a rematch, ensure the terms are fair but supportive of your case, and use the latest model to blow them out of the water.
If we assume that Tesla knew "Top Gear", by that, I mean 3 guys cracking jokes and having a laugh while driving expensive cars around; one of them known to be screaming things like "Powerrrr" while driving, then it would seem to be a foolish move on their part to ask BBC TG to review their electric car or to have accepted to have their cars reviewed.
Also, and I could be way wrong here, but the population of the Top Gear demographic is unlikely to be your average Tesla buyer.
Unsure on this - In the UK at least, Top Gear seems to be popular across a large range of people, male and female, ecologically sensitive or gas-guzzling, wealthy and poor.
It has been (may not be now) one of the most popular shows in the country. Not that that's necessarily saying much, because crappy reality shows (which I just cannot tolerate) are huge too.
The Roadster cost what, £90k whereas the car it was based on (Lotus Elise) was £30k or so? The proportion of any demographic that has £90k to spend on a "fun" car is always going to be tiny, but there's a reasonable chance that those people watch Top Gear along with everyone else.
It's not as if all the other high-end manufacturers are refusing to let Top Gear put their cars on the track is it?
I think the average Tesla buyer would more likely than not be in the "Top Gear demographic" - although the sample size of Tesla buyers might be too small to say much about averages. But Top Gear is surely watched by car enthusiasts.
I'd say your response to a bad Top Gear review should be to go back home, think of something funny, impressive and outrageous, and offer that for a re-run. It'd make a lot more sense than an appeal which just shows you to be dull. Who wants a lawyer car?
Well, apart from if you read the judgement, Top Gear was correct and Tesla wasn't.
EG
"..Tesla admitted that the range of the Roadster on the test track was about 55 miles and that if it ran out of charge it took several hours to charge it up again."
"Finally, although malice was in issue, the judge assumed that if Tesla proved any relevant falsehood, it would also succeed in proving malice (paragraph [30]). He observed, however, that in relation to each statement which Tesla alleged to be false there was a true statement relating to the same matter which was unfavourable to the Roadster (paragraph [32]). "
Not sure that their strategy of suing anyone that says anything bad about them in a review is really working out all that well for them...
Having to step on the brakes harder is not nearly the same as having broken brakes. And a fuse is exactly where a system should break, if it's going to.
No, power-assistance to the brake pedal means you have to put the pressure on the brakes yourself. Most cars have a hydraulic assist; not sure if the Tesla has hydraulics or some kind of electric assist, but the result is the same: the brakes still work! You just have to push the pedal harder.
When I first had a diesel car a few years back I would occasionally stall it while moving - the steering became borderline unusable and the brakes were almost impossible to use (and I'm a fairly big bloke with excellent leg strength).
Here is what I said: "I don't know, having the brakes suddenly stop working as they should would qualify as broken to me."
I was careful with what I said. When you say: "You just have to push the pedal harder." that means you have to change the way you use the breaks. In this case, you have to push harder than you normally would.
They are no longer working as they should. You should not have to push harder. So: Yes. They are broken. They are not operating the way they should operate.
And, I'm sorry, but the brakes not operating like they should is a bad place to have a flaw.
For Top Gear's purposes it's enough to make the car worthless for testing though, since it's not going to peform as well as a properly functioning car would. Combine that with the reduction in power due to overheating in the other car, and they basically did have to give up testing for the day. (I mean, I wouldn't put it past them to keep going anyway to make a point and embarass the manufacturer - this is Top Gear after all - but still.)
I'd regard a completely lack of power assistance to the brakes as being 'broken' on a car I intended to put on the track personally. I don't know about anyone else.
True you wouldn't want it on the track, but it's a fuse that broke and not the brakes. Replacing a fuse is pretty trivial, but replacing brakes would be a big deal.
It doesn't matter if the fix takes 5 minutes or 5 weeks, it's not Top Gear's, nor any other journalist's, job to play mechanic with a test drive vehicle.
Please don't make stuff up. Cars have already failed, taken TG's advice, been back, been improved, and Top Gear have been more than happy to say so.
The outcome was not decided up front, you made that up. That is known as lying.
Problem now, is that Tesla kicked off accusing TG of being dishonest, and then completely lost in court. So why would TG want them back for a rematch? So they can sue again if they don't like the out come?
Tesla blew it. And very stupidly too as far as the UK is concerned. TG on side would have been a massive advantage for them. Tesla will get it right in the end, electric cars will be the future. Even TG know that, and would have been on side later down the line.
TG was being dishonest. They use hyperbole everywhere so Tesla is by no means getting special treatment in that regard. I've seen them trash perfectly good cars because of stupid names and/or because the company CEO looks funny, but in this instance they took an up and coming (read: promising alternative) and kicked it to the curb :
...according to the Top Gear spokeswoman, the tested Tesla was filmed being pushed into the shed in order to
show what would happen if the Roadster had run out of charge
This was published when Tesla first sued. And accrording to Andy Wilman, the executive producer :
"Just so you understand there’s nothing devious going on, you need to know how this filming business works. When you film a car review, the reviewer is only the tip of the iceberg. Behind the lens is a film crew, and only a day’s worth of light to shoot the eight minute film. This means we have to prepare in advance a treatment – a rough draft of a script so that the director and film crew can get to work right away, knowing what shots they will need to capture. It will contain the facts about a car, and what we think of its looks and so on, but how well the car actually drives is added on the day. If we’ve driven it ahead of filming, as we do with most cars, we will also have an idea how it feels to drive. But, and this is crucial, as we uncover fresh information about a car whilst filming it, it is entirely normal for the treatment to be modified as the day unfolds. Jeremy is always tweaking the scripts to reflect what his driving experience has actually been on the day."
If I'm understanding the original case correctly Tesla lost in part because they couldn't demonstrate that their reputation would be any more damaged by someone believing that the car actually ran out of charge than they would be if that person realised it was a dramatization.
Which kind of makes sense - after all, Top Gear could have driven it until it actually ran out of power and got the same results, and Tesla Motors didn't dispute that.
This is absolutely true. Despite what people think of Jeremy Clarkson and co the truth is that Top Gear is the most popular car show in the world by a huge scale, and it wouldn't be the first time that it has been said that the kind of power that comes with their popularity means a lot when it comes to car sales.
Yes, if they slate Ferrari or Lamborghini it won't damage their sales too much, but for smaller companies that build cheaper cars a good review goes a long way towards sales. Tesla's cars aren't cheap, but they are affordable, and as a new company having the likes of Top Gear behind what they are doing would have gone a long way towards their marketing. Hell, if they had landed a great endorsement from Jeremy Clarkson or anyone else from Top Gear I'd be willing to bet that they'd be throwing that information around everywhere for years.
I thought the original Roadsters were only around £70k? Aren't the new signature models the ones that are around £90-100k?
Obviously, the average person isn't going to buy a roadster, but £90k is still affordable for some senior-level types. It's more expensive than the usual "posh" cars like the usual BMW's and Audi's out there, but with the added allure of the Roadster being a green car I reckon that £70-90k isn't too high. Since Tesla are a new company and don't have an established range of vehicles it certainly puts them in the range of companies that could be hurt by bad press on Top Gear.
Tesla blew it? From the text of the article you are commenting on and naturally didn't even read:
"In paragraph 7 of its particulars of claim Tesla also alleged that the film was false in the following respects:
"(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."
"
So Top Gear staged a fake failure of a vehicle, and its Tesla's fault? What universe do you live in?
The underlying issue here seems to be that electric cars are not the same as petrol ones. Yes, car users need to change their expectations of what a car will be in the future if it is not gasoline powered. However, when paying double or triple the price for a new version of an existing product, we expect some improvement in the experience, not potentially crippling and extreme inconvenience. If Tesla hadn't done similar tests in their validation programme as the ones done on Top Gear and then said to themselves "How could this look bad on Top Gear?" then they are foolish.
I'm not really liking Tesla's approach to PR here, they could be engaging in a much more positive way instead of lashing out at the media. Somewhat of an own goal on this one.
Exactly right, in that eletric and petrol cars are not the same. They have a different feature set. Electric cars will be worse in some areas, and better in others. A lot of people have a hard time estimating the value of electric cars, because they are very different from what they are used to. And people usually don't like different.
"A lot of people have a hard time estimating the value of electric cars"
It is also possible to look an electric cars and decide they aren't relevant to how you personally use cars - I don't drive very much but when I do its generally over 300 miles or so to locations where re-charging will never be practical. I also live in a flat with on street parking.
I hope electic vehicles will be relevant to me at some point in the near future because I would love the choice - but they aren't at the moment and I don't think they will be in the next 5 years.
Just a recommendation, but maybe you should actually read something before you respond to it:
In the article you are commenting on "
In paragraph 7 of its particulars of claim Tesla also alleged that the film was false in the following respects:
"(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 lawsuit isn't over a bad review. It is over a scripted "failure" of the vehicle. The vehicle didn't die. It's batteries didn't run out, and the Tesla engineers found the script for the scene as the test drive was beginning.
Tesla has every right to respond to having their product used as a prop for a scripted jab at electric vehicles.
1) & 2) "Tesla admitted that the range of the Roadster on the test track was about 55 miles and that if it ran out of charge it took several hours to charge it up again. "
3) A fuse broke that meant power-assistance of the brake failed. So the brakes clearly weren't working correctly. I don't think Top Gear should do fault finding on review cars.
4) TG claimed it had reduced power, not that it was immobile.
Just a recommendation before you make accusations, perhaps ask me if I had read it rather than going: you haven't read it.
It did actually fail, the brake assistance system stopped working.
1. I was referring to the fact that a 55 mile range is laughable for a car and that looks bad on TV
2. Also electric vehicles take a long time to charge up, that looks bad when accompanied by item 1.
I don't get the lawsuit route at all. If your car is good then eventually people will come around to agreeing with that assessment even if the media likes gasoline cars today. If your car isn't good then you should fix it and move on with your life.
I realize a lot of money went into development but it seems crazy to sue your way to success or even think that could work in the first place. I don't think any of these major media outlets are really afraid of getting sued by Tesla anyway so if intimidation is the point then it won't work.
A negative review in TopGear and the New York Times is pretty serious, I think it can make a lot of people that are sitting on the fence dismiss buying an electrical car for another couple years. The impact of these reviews (regardless of wether or not they are true) are pretty big imho.
If your care is good but major media outlets smear it by providing misleading information instead of balanced coverage, then people will never form their own assessment. Tesla provided vehicles to these companies for review with the understanding that a good faith effort would be made at balanced coverage; in this situation, deliberately painting a false portrait of the product's qualities is tortious and a valid grounds for legal action.
Also, slightly offtopic, but when you read the actual text of these judgments, you really get to see the depth of the analysis that is put in before a decision is made. It's not just a bang of the gavel and "Next case!".
It almost reads like a code review, the way the text is parsed ;-)
53 comments
[ 2.8 ms ] story [ 117 ms ] threadCongratulations Tesla, on lining the pockets of Carter-Ruck at your expense and causing the BBC to spend a small fortune on their own legal costs in pursuit of this pointless case.
edit: QC = Queen's Counsel. You pretty much have to have one if you're going to plead a case in the High Court IIRC.
We have a system where in higher courts people are represented directly by lawyers but by barristers/advocates - the theory is that they have a primary duty to the court and not to the client. A lawyer will instruct a barrister/advocate to run a case - in more serious cases a QC (senior) will be used along with a junior barrister/advocate.
NB My wife qualified as an advocate in Scotland - best bit being that when they are training (mostly following a qualified advocate around for a year as an unpaid assistant) you are known as an advocates devil. The whole process of training is known as devilling and the advocate training you is your devil-master. :-)
Expensive top flight barristers* with lots of experience (10-15 years minimum) that are recommended and appointed QC by the Lord Chancellor. They take precedence over other barristers and tend to be very expensive, experienced and with a proven case history and reputation. You can tell them because they get to wear silk gowns (sometimes being elected is known as "taking the silk")
Kinda the barrister equivalent of being elected to the National Academy of Sciences or a Fellow of the Royal Society.
* Barristers are one of two types of lawyers in the UK (the other being solicitors) they do most of the court-room advocacy etc.
See Samsung vs Apple, initially Apple didn't have to pay Samsung's fees, but after Apple annoyed the judge with their non-apology apology, the judge ordered that Apple pay [1]:
As to the costs (lawyers' fees) to be awarded against Apple, we concluded that they should be on an indemnity basis. Such a basis (which is higher than the normal, "standard" basis) can be awarded as a mark of the court's disapproval of a party's conduct, particularly in relation to its respect for an order of the court. Apple's conduct warranted such an order.
http://www.bailii.org/ew/cases/EWCA/Civ/2012/1430.html
They won't win a rematch, even if they do.
Also, and I could be way wrong here, but the population of the Top Gear demographic is unlikely to be your average Tesla buyer.
It has been (may not be now) one of the most popular shows in the country. Not that that's necessarily saying much, because crappy reality shows (which I just cannot tolerate) are huge too.
It's not as if all the other high-end manufacturers are refusing to let Top Gear put their cars on the track is it?
I'd say your response to a bad Top Gear review should be to go back home, think of something funny, impressive and outrageous, and offer that for a re-run. It'd make a lot more sense than an appeal which just shows you to be dull. Who wants a lawyer car?
EG
"..Tesla admitted that the range of the Roadster on the test track was about 55 miles and that if it ran out of charge it took several hours to charge it up again."
"Finally, although malice was in issue, the judge assumed that if Tesla proved any relevant falsehood, it would also succeed in proving malice (paragraph [30]). He observed, however, that in relation to each statement which Tesla alleged to be false there was a true statement relating to the same matter which was unfavourable to the Roadster (paragraph [32]). "
Not sure that their strategy of suing anyone that says anything bad about them in a review is really working out all that well for them...
"whereas what had actually failed was a fuse in the equipment providing power-assistance to the brake pedal"
It's a bit six of one, half a dozen of the other but Tesla do seem to 'have a way with facts'
> a fuse is exactly where a system should break,
That system being the brakes?
It's a horrible and unsafe experience in a modern car on the road and totally unfeasible on a racetrack.
I was careful with what I said. When you say: "You just have to push the pedal harder." that means you have to change the way you use the breaks. In this case, you have to push harder than you normally would.
They are no longer working as they should. You should not have to push harder. So: Yes. They are broken. They are not operating the way they should operate.
And, I'm sorry, but the brakes not operating like they should is a bad place to have a flaw.
The outcome was not decided up front, you made that up. That is known as lying.
Problem now, is that Tesla kicked off accusing TG of being dishonest, and then completely lost in court. So why would TG want them back for a rematch? So they can sue again if they don't like the out come?
Tesla blew it. And very stupidly too as far as the UK is concerned. TG on side would have been a massive advantage for them. Tesla will get it right in the end, electric cars will be the future. Even TG know that, and would have been on side later down the line.
http://www.theregister.co.uk/2008/12/22/bbc_top_gear_tesla/
Edit: Straight from the horse's mouth...http://transmission.blogs.topgear.com/2011/04/02/tesla-vs-to...
This was published when Tesla first sued. And accrording to Andy Wilman, the executive producer :
"Just so you understand there’s nothing devious going on, you need to know how this filming business works. When you film a car review, the reviewer is only the tip of the iceberg. Behind the lens is a film crew, and only a day’s worth of light to shoot the eight minute film. This means we have to prepare in advance a treatment – a rough draft of a script so that the director and film crew can get to work right away, knowing what shots they will need to capture. It will contain the facts about a car, and what we think of its looks and so on, but how well the car actually drives is added on the day. If we’ve driven it ahead of filming, as we do with most cars, we will also have an idea how it feels to drive. But, and this is crucial, as we uncover fresh information about a car whilst filming it, it is entirely normal for the treatment to be modified as the day unfolds. Jeremy is always tweaking the scripts to reflect what his driving experience has actually been on the day."
Which kind of makes sense - after all, Top Gear could have driven it until it actually ran out of power and got the same results, and Tesla Motors didn't dispute that.
Yes, if they slate Ferrari or Lamborghini it won't damage their sales too much, but for smaller companies that build cheaper cars a good review goes a long way towards sales. Tesla's cars aren't cheap, but they are affordable, and as a new company having the likes of Top Gear behind what they are doing would have gone a long way towards their marketing. Hell, if they had landed a great endorsement from Jeremy Clarkson or anyone else from Top Gear I'd be willing to bet that they'd be throwing that information around everywhere for years.
Obviously, the average person isn't going to buy a roadster, but £90k is still affordable for some senior-level types. It's more expensive than the usual "posh" cars like the usual BMW's and Audi's out there, but with the added allure of the Roadster being a green car I reckon that £70-90k isn't too high. Since Tesla are a new company and don't have an established range of vehicles it certainly puts them in the range of companies that could be hurt by bad press on Top Gear.
"In paragraph 7 of its particulars of claim Tesla also alleged that the film was false in the following respects:
"(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." " So Top Gear staged a fake failure of a vehicle, and its Tesla's fault? What universe do you live in?
I'm not really liking Tesla's approach to PR here, they could be engaging in a much more positive way instead of lashing out at the media. Somewhat of an own goal on this one.
Slightly irrelevant video of a Ferrari test driver destroying an engine: http://www.youtube.com/watch?v=La03k7FzlZA
It is also possible to look an electric cars and decide they aren't relevant to how you personally use cars - I don't drive very much but when I do its generally over 300 miles or so to locations where re-charging will never be practical. I also live in a flat with on street parking.
I hope electic vehicles will be relevant to me at some point in the near future because I would love the choice - but they aren't at the moment and I don't think they will be in the next 5 years.
"(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 lawsuit isn't over a bad review. It is over a scripted "failure" of the vehicle. The vehicle didn't die. It's batteries didn't run out, and the Tesla engineers found the script for the scene as the test drive was beginning.
Tesla has every right to respond to having their product used as a prop for a scripted jab at electric vehicles.
Tesla's explanation was essentially: "whereas what had actually failed was a fuse in the equipment providing power-assistance to the brake pedal"
So, I don't know about you, but something suddenly not working the way it's supposed to work is something I would consider broken.
1) & 2) "Tesla admitted that the range of the Roadster on the test track was about 55 miles and that if it ran out of charge it took several hours to charge it up again. "
3) A fuse broke that meant power-assistance of the brake failed. So the brakes clearly weren't working correctly. I don't think Top Gear should do fault finding on review cars.
4) TG claimed it had reduced power, not that it was immobile.
It did actually fail, the brake assistance system stopped working.
1. I was referring to the fact that a 55 mile range is laughable for a car and that looks bad on TV 2. Also electric vehicles take a long time to charge up, that looks bad when accompanied by item 1.
I realize a lot of money went into development but it seems crazy to sue your way to success or even think that could work in the first place. I don't think any of these major media outlets are really afraid of getting sued by Tesla anyway so if intimidation is the point then it won't work.
It almost reads like a code review, the way the text is parsed ;-)