Car manufacturers have welcomed the High Court’s findings in the Pan-NOx group litigation claims - as the claimants consider whether to seek permission to appeal a judgment which ‘creates a significant divergence between the legal position in Great Britain and much of Europe’.
Lady Justice Cockerill's 369-page judgment followed in the first substantive liability trial in the 'dieselgate' group litigation. The 13-week trial had to determine whether diesel vehicles produced from 2012-17 by five car manufacturers contained prohibited defeat devices (PDDs) and, if they did, whether the devices give rise to private law claims.
All the manufacturers – Mercedes-Benz, Ford, Nissan, Renault, and Peugeot/Citroën – denied any wrongdoing.
The court rejected many of the allegations brought by the 1.6 million claimants, finding that not every calibration or emissions-control strategy amounted to a defeat device. The judge said: ‘For a defeat device to be found, there needs to be an intentional and/or impermissible purpose of causing the [emission control system] to operate differently when it senses it is being tested. It is therefore unnecessary to calibrate “normal driving conditions” or determine the meaning of “reduces the effectiveness”.’
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She added: ‘On whichever analysis of the relevant provisions is pursued, the ambit of the claim is much reduced.' Many of the claims alleging the presence of PDDs do not succeed, she said.
Mercedes said it welcomed the High Court's ruling 'very largely in favour of Mercedes-Benz’. However it disagreed with the court’s finding that one of four of the sample vehicles was non-compliant in one piece of functionality. ‘In our view, the emission control software functionalities are justifiable on both technical and legal grounds,' a spokesperson said. We are actively considering all of our available options, including a potential appeal’.
For the claimants, Martyn Day of claimant firm Leigh Day, said the judge had 'surprisingly disagreed with the established EU case law on what a defeat device is'. He added ‘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.
Claimant firm Pogust Goodhead said the court 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,' Anna Varga, partner, said. ‘We will continue working closely with our co-lead firms and leading counsel to assess the judgment, consider the appropriate next steps and ensure every properly arguable avenue remains available to our clients.’
A further trial to decide on quantum is listed to begin in October.
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