A Derbyshire firm involved in the group action case against car maker Volkswagen (VW) has been criticised for its ‘inconsistent, non-engaging and generally unhelpful’ conduct in an application to extend the timeframe for a service of claim.
In judgment in Viner & others v VW Group, published today, Senior Master Barbara Fontaine denied Chesterfield-based Your Lawyers' application for an extension so that it could serve a claim form against VW UK. VW UK was awarded undisclosed costs.
Your Lawyers, alongside Slater and Gordon and Leigh Day, is one of three firms acting on a group action case against VW. The motor giant is accused of fitting software in diesel vehicles to manipulate the results of emissions tests. More than 50,000 current and former VW owners are part of the claim.
Parent company VW AG and various car dealerships are defendants in the case. VW UK, which did not manufacture or sell the offending vehicles, is not a named defendant. However, Your Lawyers sought to pursue VW UK in a separate case on behalf of nine claimants. Slater and Gordon and Leigh Day are not part of that claim.
Your Lawyers issued its claim against VW UK in January 2016. However, it later applied to seek an extension for service of claim until the separate group litigation order (GLO) issues had been determined. But in judgment, Fontaine said today there was a ‘deliberate decision’ not to serve the claim form and that there was 'no good reason not to do so’.
She said a proper cause of action could have been to serve the claim form before applying, if appropriate, for a stay, which would have determined whether the matter should be included in the GLO. This, she said, ‘would have been obvious to a competent litigation practitioner’. ‘It was a serious misjudgment to take the course adopted, and no proper explanation has ever been given as to why it was thought appropriate,’ she added.
Fontaine added that Your Lawyers’ conduct in correspondence with VW's solicitors, Freshfields, was ‘inconsistent, non-engaging and generally unhelpful.’
A spokesperson for Your Lawyers said: 'We are extremely disappointed and do not agree with the judge’s comments. As an example, in the judgment it says that Your Lawyers has stated in evidence and open correspondence that the claimants had no cause of action against VW UK. This is incorrect, we have never stated that the claimants do not have a cause of action against VW UK. To the contrary, we are so confident of their culpability that we are currently considering bringing a private prosecution against VW UK.
'This was an application which was listed at extremely short notice and the defendant’s evidence was served very late; no account seems to have been taken of this. As the judgment has only just been handed down, we are currently considering with counsel what steps we should take, including whether we should appeal.’
A spokesperson for VW UK said it was pleased that the court agreed with its position and evidence.