Mercedes: Considering appeal of its own
There is a “compelling case” for an appeal, claimant lawyers have said, after the High Court’s liability ruling in the Dieselgate litigation largely went in favour of car manufacturers.
On Friday, in a 396-page ruling, Lady Justice Cockerill rejected most of the principal allegations advanced against the manufacturers whose vehicles were examined at trial – Mercedes, Ford, Peugeot- Citroën and Nissan-Renault.
However, she made adverse findings about a device in Mercedes cars which was removed by a December 2015 software update and one used in some Peugeot-Citroën vehicles.
She was also not persuaded that the Mercedes device made a difference to the levels of nitrogen oxides (NOx emissions) in practice in the particular test vehicle.
Some 1.6 million owners of diesel cars built between around 2012 to 2018 alleged that their cars, manufactured by 14 manufacturers, all contained prohibited defeat devices which aimed to ‘cheat’ tests on whether they emitted too much of harmful NOx gasses.
During a 13-week trial, the court examined 20 vehicles from five manufacturers in the test case. Cockerill LJ – who is now deputy head of civil justice – held that for a defeat device to be found, there had to be an intentional and/or impermissible purpose of causing the emissions control system to operate differently when it sensed it was being tested.
The litigation has been a huge undertaking, with the claimants’ budgets – running to hundreds of millions of pounds – being repeatedly slashed in costs management exercises.
The next stage will be a trial in October to determine the consequences of any actionable breaches and any issues relating to damages or other remedies.
The claimants’ lawyers said the judgment “creates a significant divergence between the legal position in Great Britain and much of Europe”.
They explained: “The judge decided post-Brexit not to follow several key decisions of the Grand Chamber of the Court of Justice of the European Union (CJEU). This means that defeat devices that would be likely to be found to be illegal across the EU are allowed in Great Britain.
“The judge accepted that if she is wrong in her interpretation of the law (article 3(10) of the Emissions Regulation 2007), then a majority of the sample cars would have an unlawful defeat device.”
In relation to Ford, the judge found that the devices alleged were not defeat devices but noted that separate issues about serious defects in Ford’s Lean NOx Trap emissions control equipment were not addressed in this trial.
There were six lead claimant law firms: Pogust Goodhead, Leigh Day, KP Law, Milberg, Hausfeld and Johnson Law Group. A further 16 firms were attached to the litigation.
Leigh Day senior partner Martyn Day described the judge’s decision on EU case law “surprising”. He said: “The High Court has found that despite their denials, other manufacturers also used VW-style defeat devices…
“If this ruling is followed in Great Britain then this is now the only significant place in Europe where manufacturers are free to build and sell cars that contain these types of devices.
“We welcome some of the judge’s findings, but we think important parts of the decision are disappointing not least because of the impact on the environmental and consumer protection. We are considering with our clients whether to apply for permission to appeal.”
Pogust Goodhead partner Anna Varga added: “The judgment does not bring this litigation to an end. The court has found that certain manufacturers installed unlawful defeat devices, but it also adopted a significantly narrower interpretation of the law than that applied elsewhere in Europe.
“It is that interpretation, and the important legal issues flowing from it, which will now require careful consideration.”
Elizabeth Comley, chief operating officer and head of collective actions at Slater & Gordon, said: “Although the court has recognised that certain vehicles contain prohibited defeat devices, aspects of the judgment raise significant questions about how emissions regulations should be interpreted in Great Britain and how those interpretations compare with established legal positions in Europe.
“Consumers rightly expect the vehicles they purchase to comply with environmental standards and regulatory requirements. Where there are questions over whether that has happened, motorists deserve clarity and accountability.
“We believe there are compelling grounds for appeal and we are carefully considering next steps.”
The Renault Group said it welcomed the decision, “which is fully consistent with its long-held position that its vehicles have been and are designed, engineered, and manufactured in accordance with all applicable regulatory requirements”.
Its statement continued: “Renault Group will now pursue the recovery of its legal costs from the large institutional insurers and hedge funds who backed these claims in the hope of a financial gain.”
Mercedes-Benz said the decision “confirms the effectiveness of our software update programme” but disagreed with the adverse finding about one of its vehicles. “We are actively considering all of our available options, including a potential appeal.”
Cockerill LJ said it had been “an unusual pleasure and privilege to be involved in this case”.
She explained: “While the early days of the litigation at first seemed to presage a fairly unreasonable and bunkered approach, with parties wasting time on recriminatory correspondence rather than progressing the litigation, the parties have responded admirably to judicial ‘encouragement’ to co-operate and assist the court.
“Specific thanks are due to the core solicitor teams who have appeared regularly at the ‘management meetings’ convened weekly or every two weeks to deal with issues arising in the day to day progress of this behemoth of litigation.
“The teams – counsel, solicitors, experts and witnesses – have worked extraordinarily hard over many weeks and months (including evenings, weekends and holidays).
“They have good-temperedly operated sardined into courts which have struggled to contain the hundreds of people sometimes requisite for parts of hearings and with the constant shifts of seating necessary to bring the right litigation teams close to the microphones.”
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