Mercedes: Crucial step in litigation
The first round of the diesel emissions litigation went to the claimants yesterday, with the High Court rejecting Mercedes’ bid to bind the court to decisions made by the German motor transport regulator.
In the first substantive preliminary hearing, Mercedes argued that the Kraftfahrt-Bundesamt’s (KBA) original ‘type’ approvals had already decided whether their cars contained prohibited defeat devices (PDDs) and that this bound both the German and English courts, which would prevent British consumers from bringing claims in England and Wales.
However, Mr Justice Constable said the experts who gave evidence said that approval by the KBA would not preclude a claim like this being brought in the German courts, meaning “it obviously cannot be binding under English law” either.
Further, he held that the KBA’s ‘voluntary update decisions’ in respect of Mercedes vehicles were unlawful.
The claimants contended that these updates were an attempt to remove PDDs from Mercedes vehicles outside of the regulatory regime in secret.
But both sides agreed before Constable J accepted that they were bound by the KBA’s mandatory recalls of Mercedes vehicles, which happened so that PDDs which had been discovered could be removed.
For those where a recall was not issued, the claimants will still need to prove the presence of a PDD.
The claimants described the judgment as “a crucial step” on the way to the trial set for October 2025 on whether Mercedes, Ford, Renault Nissan and Citroen Peugeot used PDDs.
Other vehicle manufacturers were allowed to make submissions as the decision could have an impact on the cases against them – Volkswagen, Ford and Nissan did so.
Pogust Goodhead and Leigh Day are the lead solicitors on the case. Pogust Goodhead global managing partner and chief executive Tom Goodhead said: “This is a huge victory for British consumers as it will allow British courts and regulators to check whether these diesel car manufacturers complied with the law on emissions.”
It was recently reported that the Department for Transport was investigating 47 diesel vehicles for possible PDDs, with regulatory enforcement action to follow where manufacturers were found to have breached emissions standards.
Alan Sellers, executive chairman of Anexo Group PLC, which through its law firm Bond Turner has 12,000 claimants, said: “Whilst this decision is not definitive for the success of the claims, it does strengthen the claimants’ position and is a significant victory in the litigation at this stage. We are very pleased with the outcome.”
In the summer, the High Court refused to sanction the “absurd” and “staggering” £343m in costs put forward by the claimants for just the first third of the diesel emissions group litigation.
Mr Justice Constable and the Senior Costs Judge, Andrew Gordon-Saker, slashed by 75% the £208m in future costs put forward in their budget and suggested that the balance of incurred costs were likely to have been subject to similar “over-lawyering”.
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