Anthony Joseph Champion Crossley and Others v Volkswagen Aktiengesellschaft
| Jurisdiction | England & Wales |
| Judge | Mr Justice Waksman |
| Judgment Date | 20 December 2021 |
| Neutral Citation | [2021] EWHC 3444 (QB) |
| Docket Number | Claim No: QB-2016-000011 |
| Court | Queen's Bench Division |
[2021] EWHC 3444 (QB)
Mr Justice Waksman
Claim No: QB-2016-000011
(formerly HQ16X03625) & Ors
THE VW NOx EMISSIONS GROUP LITIGATION
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Tom de la Mare QC, Oliver Campbell QC, Adam Kramer QC, Adam Heppinstall QC, Gareth Shires, Rachel Tandy and Beatrice Graham (instructed by Slater & Gordon UK Limited, Excello Law (2) Limited trading as PGMBM, and Leigh Day Solicitors) for the Claimants
Charles Gibson QC, Prashant Popat QC, Brian Kennelly QC, Kathleen Donnelly, Nicholas Sloboda, Adam Sher, Thomas Evans, James Williams, Jason Pobjoy and Celia Oldham and Ben Norton (instructed by Freshfields Bruckhaus Deringer LLP Solicitors) for the First to Sixth Defendants and
Geraint Webb QC (instructed by Freshfields Bruckhaus Deringer LLP Solicitors) for the Seventh Defendants
APPROVED JUDGMENT
Hearing dates: 6–10 December 2021
INTRODUCTION
In this matter, the Claimants consist of about 86,000 owners of VW, Audi, Skoda and SEAT diesel cars. The common feature is that they all use the EA189 engine or a relevant variant of it. Audi, Skoda and SEAT all form part of the VW group and I shall hereafter simply refer to VW. The first four Defendants are the manufacturers of the vehicles (“the VW Manufacturers”). The Sixth Defendant (“VWFS”) is VW's financial services company in the UK which provided finance to some of the Claimants in connection with the purchase of their cars. The Seventh Defendant consists of a group of VW Authorised Dealers (“the VW Dealers”) which sold the cars to a large number of the Claimants. The Fifth Defendant is not now relevant and no claim has been made against it. Unless the context otherwise requires, I shall refer to the Defendants collectively as “VW”.
The claims in this action are made pursuant to a Group Litigation Order made on 21 May 2018, and I am the managing judge. The parties have selected a group of 20 Lead Claimants whose claims will be heard at a lengthy trial starting on 24 January 2023 and which will end by no later than 31 July. As described below, there are both Generic and Individual statements of case. I shall refer to the Generic Particulars of Claim, Defence and Reply as “GPOC”, “GDEF” and “GREP” and the same Individual statements of case as “IPOC”, “IDEF” and “IREP”.
The foundation for all the claims made against VW is the fact that each of the engines contained what is known as a “defeat device”; when operating in Mode 1, it enabled the engine to emit Nitrogen Oxide and Dioxide (“NOx Emissions”) at a level which was below the maximum permissible levels under, among other things, EU Regulation 715/2007 (“the Emissions Regulation”). The defeat device was able to recognise when vehicles were being tested for the purpose of ensuring compliance with the Emissions Regulation which was a precursor to the obtaining of Type Approval, itself necessary before the cars could be manufactured and sold to the public. During the test, the defeat device ran in Mode 1. Otherwise, it ran in Mode 2. In that mode, the NOx emissions exceeded the permissible limits. The defeat device itself consisted of a software function which could and did alter the relevant engine operation so as to reduce NOx emissions, itself known as Exhaust Gas Recirculation (“EGR”).
I need say no more at this stage about the technical aspects of the case because, by my judgment dated 6 April 2020 following a trial of preliminary issues, I held that the software function did indeed amount to a defeat device. In so finding, I joined a number of other domestic courts in Europe and the Court of Justice of the European Union itself. For further details, the reader is referred to that judgment (“the PI Judgment”).
Put very broadly, the Claimants make the following claims:
(1) As against the VW Manufacturers:
(a) a claim for breach of the statutory duties imposed on them by the Emissions Regulation (the Breach of Statutory Duty Claim);
(b) a claim in fraudulent misrepresentation (the Deceit Claim);
(2) As against VWFS and the VW Dealers:
(a) claims for damages for breach of contract; one aspect of this is the allegation that the cars, when purchased, were not of satisfactory quality (the SQ Claim);
(b) claims made under the Consumer Protection from Unfair Trading Regulations 2008 (the CPUT claim);
(c) an unfair relationship claim made against VWFS only, pursuant to section 140A of the Consumer Credit Act 1974.
When the existence of the defeat devices in VW cars first became known to the public at large in what became known as “Dieselgate” or “the VW Emissions Scandal”, a number of things happened. First, and almost immediately, VW withdrew from sale, for a period, cars with the affected engines. Second, the regulatory authorities (described in more detail below) in various EU Member States became involved. The third event was that VW provided a “fix” in respect of the defeat device. This was said to be essentially a software change to ensure that on the road, the car would now operate in a single mode and thereby conform to the relevant emissions standards. It was offered free of charge to all relevant owners as a service update and which could be effected in about 30 minutes at a local VW garage. Many, but by no means all, of the owners have had this work done.
Following an amendment to the Generic Particulars of Claim (GPOC), the Claimants now contend that the software change effected by the fix, or an element of that change, is itself another defeat device. It is referred to as the Thermal Window Defeat Device. This is a matter for trial and does not feature presently.
THE APPLICATIONS
There are two applications before me. The first, dated 22 April 2021 is made by the VW Manufacturers to strike out or summarily dismiss the Deceit Claim which has been set out in both the Generic and Individual Particulars of Claim. This application is made on the basis that the Claimants have not properly pleaded, but in any event cannot make out, what the VW Manufacturers say is one essential element of the tort. I shall refer to that requirement, explained below, as the “Awareness Condition”. A subsidiary part of their application relates to the particular cases in deceit brought by five of the Lead Claimants. I refer to this application as “the Deceit Claim Application”.
The second application, dated 2 July 2021 (“the SQ Application”) is made by the Claimants against VWFS and the VW Dealers. It is principally for summary judgment for the 20 Lead Claimants in respect of the allegation that the cars were not of satisfactory quality. A second part of that application is that in any event, certain parts of the Generic Defence should be struck out.
It is common ground that neither application, if successful, will dispose of the trial. The two applications were heard by me on 6–10 December 2021. On Friday 3 December, I ruled that the Claimants had sought to expand the scope of the SQ Application materially, and without permission. Save for one modification, I then ruled that the Claimants were confined to the SQ Application as originally formulated. The hearing in the following week took up all of the allotted time. So even if I had permitted the Claimants to expand the scope of the SQ Application, it could not possibly have been heard in the time available. Insofar as the Claimants wish to pursue the other elements of the SQ Application, as now amended, I have directed that this can be done early next year.
This is my judgment on these two applications.
SUMMARY JUDGMENT AND STRIKE-OUT PRINCIPLES
I do not intend to rehearse in detail all the relevant principles established by the case law as to how the court should approach (a) an application for summary judgment under CPR 24.2 and (b) an application to strike out a claim or defence pursuant to CPR 3.4 (2) (a). I confine myself to the following matters.
First, under CPR 24.2, the applicant may obtain summary judgment against the other party if their defence (or claim) has no real prospect of success and there is no other compelling reason for a trial. The burden of showing this rests upon the applicant. “Real” means “not fanciful”. The Court should not conduct a mini-trial. However this does not mean that a Court has to accept every assertion made by the respondent to the application, at face value.
In deciding the application, the Court should take into account not only the evidence presently before it, but also evidence that is not but could reasonably be expected to be, available at trial. If the application turns on a short point of construction or law and all the relevant evidence is before the Court, then it should grasp the nettle and decide the point; this is for the simple reason that there is nothing to be gained by delaying the inevitable.
In this case, and as will be explained below, both sides contend in respect of the applications made against them, that even if the claim or defence has no real prospect of success, there is in any event a compelling reason for a trial of it. In this regard, two important examples of a compelling reason are:
(1) the fact that the application concerns a developing area of the law; here, it may be desirable that the disputed legal questions should be resolved against the background of the facts as already found at the trial, and not hypothetical facts;
(2) where summary judgment will not dispose of the whole case; this will be so where there will be a trial anyway, regardless of the outcome of the summary judgment; it is particularly relevant if, at the trial,...
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...was not necessary for the claim to have a real prospect of success at trial: Crossley & Ors v Volkswagen Aktiengesellschaft & Ors [2021] EWHC 3444 (QB). This contrasts with the recent line of authorities which have held that conscious awareness is a necessary part of a claimant's case, in t......
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...was not necessary for the claim to have a real prospect of success at trial: Crossley & Ors v Volkswagen Aktiengesellschaft & Ors [2021] EWHC 3444 (QB). This contrasts with recent authorities that have held that conscious awareness is a necessary part of a claimant's case, in the context of......
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