The legal spat arose from an episode, first broadcast in December 2008, in which the Tesla Roadster was raced against a petrol-powered Lotus Elise in what was described as the ultimate test for an electric car.
The item, which is still available on Top Gear’s website, showed the Roadster dropping speed on the race track and eventually being pushed into a garage to be re-charged.
Tesla, which sued the BBC for libel and malicious falsehood, said the scenes were not a true representation of the sports car’s performance and meant the company had “intentionally and/or recklessly, grossly misled potential purchasers” by claiming it had a range of 200 miles when its true range was about 55 miles.
But, at a hearing in London earlier this month, Andrew Caldecott QC told Mr Justice Tugendhat that the words complained of were not defamatory as they were not capable of bearing the alleged meaning.
He said it would be obvious to the viewer that the use of the car on the show’s test track was not like driving on a normal road, and that the programme made the point that it was not contrasting “like with like”.
The judge agreed – ruling that the words were incapable of meaning that Tesla misled anyone, but he adjourned his decision on whether the programme made other false statements about the Roadster’s performance.
Today, he also struck out the malicious falsehood claim, which was limited to broadcasts after the end of March 2010 seen by an estimated audience within England and Wales of 1.7 million.
He said the claim was “so lacking in particularity” on the question of the alleged pecuniary damage caused that it could not be allowed to proceed.
“Unless it is capable of remedy, the claim must be struck out.”
The judge said his order should stand unless the plea of damage was amended by agreement between Tesla and the BBC, or with the permission of the court.
The £87,000 Roadster, which can be charged from a standard domestic plug, is the fastest electric vehicle and is favoured by “green” celebrities including George Clooney, Leonardo DiCaprio and Matt Damon.