Aurora Cavallari and Others v Mercedes-Benz Group AG
| Jurisdiction | England & Wales |
| Judge | Senior Master Fontaine |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] EWHC 512 (KB) |
| Docket Number | Case No: QB-2022-002405 |
| Court | King's Bench Division |
[2023] EWHC 512 (KB)
SENIOR Master Fontaine
Case No: QB-2022-002405
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Oliver Campbell KC and Gareth Shires (jointly instructed by the proposed Claimant Steering Committee, comprising Leigh Day, Pogust Goodhead, Milberg London LLP, Keller Postman Limited, Slater & Gordon UK Limited, and Hausfeld & Co LLP) for the Claimants
Helen Davies KC Malcolm Sheehan KC and Richard Blakeley (instructed by Herbert Smith Freehills LLP) for the Defendants
Hearing date: 9 February 2023
Approved Judgment
SENIOR Master Fontaine
This was the hearing of an application dated 22nd March 2022 by the Claimants in 72 claims (as listed in Annex 1) for a group litigation order (“GLO”). The Defendants support the making of a GLO.
The following witness statements were filed:
For the Claimants
i) First and second witness statements of Martyn Day dated 22 March 2022 and 20 January 2023;
For the Defendants
ii) First witness statement of Natasha Kate Johnson dated 21 December 2022.
Background to the Application
The Defendants to these claims are companies which manufacture, sell or lease Mercedes-Benz (“MB”) vehicles in the United Kingdom and elsewhere. The First to Fifth Defendants form part of the MB group. The Sixth Defendants comprise a number of authorised dealers of the First to Fifth Defendants (“the Authorised Dealers”). The Claimants allege that the Defendants are liable for the alleged inclusion of prohibited “defeat devices” (“PDDs”) in certain MB passenger and commercial diesel vehicles (“Relevant Vehicles”). Liability is denied entirely.
Draft Generic Particulars of Claim have been served. The causes of action relied upon differ depending upon whether the Claimant is a consumer or a business. All Claimants bring claims against the First and Second Defendants, as manufacturers of the vehicles (“the Manufacturer Defendants”) for:
i) Breach of statutory duty in relation to the EU regulatory regime for emissions (Article 5(2) of Regulation 2007/715) and breach of statutory duty in relation to domestic legislation governing the sale of vehicles;
ii) Breach of Article 101(1) TFEU (and associated breach of s. 2(1) of the European Community Act 1972) and/or breach of Chapter 1 of the Competition Act 1972; such claims are also made against the Third, Fourth, Fifth and Sixth Defendants;
iii) Deceit.
The claims made solely by the consumer Claimants are:
i) Claims for breach of the statutory guarantee provided when the vehicles were acquired and/or updated by the Manufacturer Defendants;
ii) Claims for breach of agreements pursuant to which a consumer obtained an interest in a Relevant Vehicle by supplying goods and/or software of unsatisfactory quality in breach of terms implied by either the Sale of Goods Act 1979 or the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 against the Fourth and Fifth Defendants and the Authorised Dealerships;
iii) Claims for redress under the Consumer Protection from Unfair Trading Regulations 2008 (“CPUT”) against the Fourth and Fifth Defendants and the Authorised Dealerships;
iv) Unfair credit relationship claims against the Fifth Defendant under the Consumer Credit Act 1974.
The claims made solely by the business Claimants are:
i) breach of contract by supplying goods and/or software of unsatisfactory quality in breach of the terms implied by s. 14 of the Sale of Goods Act 1979 against the Fourth and Fifth Defendants and the Authorised Dealers;
ii) for some business Claimants, unfair credit relationship claims against the Fifth Defendant under the Consumer Credit Act 1974.
The claims relate to a number of different vehicle and engine types, but both parties agree that there are sufficient linking features that mean that, although the claims are complex, a GLO is the appropriate vehicle for case management.
At the date of the hearing 299,224 claims had been issued by 12 firms of solicitors. A total of 17 firms of solicitors (including the 12 which have issued claims) have instructions in respect of 336,824 claims both issued and not yet issued.
The court was informed at the hearing that the Claimants proposed that Leigh Day and Pogus Goodhead act as joint lead solicitors (“the Lead Solicitors”) and that there be a steering committee (“the Steering Committee”) to include the Lead Solicitors and four other firms, Hausfeld & Co LLP, Milberg London LLP, Slater and Gordon UK Ltd and Keller Postman UK Ltd. Those proposals are not opposed by the Defendants. There is also a Claimant solicitors committee (“CSC”) consisting of 11 other firms which have either issued claims or have been instructed in respect of claims.
Whether it is appropriate to make a GLO, subject to the approval of the President of the King's Bench Division
CPR 19.10 defines a GLO as an order made under rule 19.11 to provide for the case management of claims which give rise to common or related issues of fact or law (the “GLO issues”). There is no dispute that the claims give rise to common or related issues of fact and law, and the parties agree that a GLO is the most appropriate way to manage this litigation and have been able to agree the GLO issues. I informed the parties at the end of the hearing that I agreed that the claims did give rise to common or related issues of fact and law, and that I considered it appropriate for the court to exercise its discretion to make a GLO in these claims, subject to the approval of the President of the King's Bench Division. This judgment therefore deals only with the remaining disputed issues between the parties in respect of the terms of the GLO and the Schedules of Core Information (“the SOCI”) to be provided by each Claimant in place of individual particulars of claim, as is usual in group litigation.
The Draft GLO
The precise terms of the proposed order have been the subject of considerable discussion and debate in correspondence between the parties, with compromises being made by both sides. I commend both parties for their work in this regard. I have no difficulty in approving the terms which have been agreed between the parties, and I set out below my decision in respect of the wording of those paragraphs that remain in issue between the parties.
Section G – Standard Minimum Requirements
Paragraph 33 sets out all the standard minimum requirements for entry of a claim form onto the Group Register.
Paragraph 33 (c)
Paragraph 33 (c) reads as follows, with the disputed sentence underlined:
“The Claimant must claim to be, or have been, the owner (including a joint owner) of a relevant vehicle, or to have, or have had, and interest in a relevant vehicle whether by purchase, hire purchase, leased, personal contract plan or other finance terms. Such ownership or interest must have arisen from a contract subject to the laws of England and Wales.”
The Defendants seek to include the disputed sentence on the basis that it cannot be assumed that the claim of a Claimant whose interest derives from a non-English law contract will raise common issues with a Claimant whose interest derives from an English law contract. It is submitted that in any event it cannot be assumed that such a claim will have sufficient common interest issues to justify automatic inclusion in the GLO. It is not accepted that it would be burdensome for the Claimants to provide this information as they must know where they purchased their vehicles.
The Claimants submit that there is no issue with jurisdiction, the Third to Sixth Defendants being UK companies. The only Claimants whose contracts may include a non-English law clause are those where the contract may be subject to either Scottish or Northern Ireland law. The Claimants who are resident in either Scotland or Northern Ireland number about 1,000 in total, less than 1% of the total number of Claimants, and are those most likely to have entered into contracts subject to Scottish or Northern Ireland law. However that may not be the case for all of them. It is not necessarily the case that a Claimant who was living in Scotland or Northern Ireland at the time of acquisition of their vehicle purchased the vehicle pursuant to a contract subject to Scottish or Northern Ireland law, and some may have purchased their vehicle in England. The Claimants do not assert that the court should apply Scottish or Northern Irish law to any claims. It is submitted that if the Defendants contend that a foreign law applies it would be up to them to plead and establish that, and if there is no such contention the court will apply English law. The Claimants also submit that such a requirement would be impractical as it would necessitate a great deal of unnecessary additional work to establish which claims rely on contracts subject to Scottish or Northern Ireland law, and may not necessarily be straightforward.
However, the parties have subsequently indicated that they would accept alternative wording, albeit still not agreed. The Defendants would accept the words “The Relevant Vehicle must have been acquired in England and Wales” and the Claimants would accept the words “The Relevant Vehicle must have been acquired in the UK or the Channel Islands.”
Decision in respect of Paragraph 33 (c)
I consider that it would be appropriate to include the wording now suggested by Mr Campbell KC for the Claimants, namely:
“The Relevant Vehicle must have been acquired in the UK or the Channel Islands.”
The alternative is that the...
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Mark Allsopp (and the other Claimants as listed in the Claim Forms identified above) v Bayerische Motoren Werke Akteingesellschaft
...acquired in the UK or the Channel Islands.”. In Senior Master Fontaine's judgment, Cavallari and ors v Mercedes Benz Group AG and ors [2023] EWHC 512 (KB) at [17] she explained her decision; “17. I consider that it would be appropriate to include the wording suggested by Mr Campbell KC for......