Ethan Thomas Wragg and Others v Opel Automobile GmbH

Hearing date: 17 April 2024

Introduction

The Appellants are the First and Second Defendants, domiciled in Germany, (‘the German Defendants’) in a claim brought by a large number of Claimants who allege that certain Vauxhall-branded diesel engine vehicles manufactured by the German Defendants and/or supplied by the Defendants contain unlawful defeat devices. A Group Litigation Order (‘GLO’) in these proceedings was made, following a hearing before Senior Master Cook on 17 and 18 January 2024. This is one of a number of GLOs which are being managed alongside other similar claims brought against all major diesel manufacturers, in what is known as the Pan-NOx Litigation.

Between 11 May 2021 and 15 November 2022, the Claimants issued 31 claim forms. During the early correspondence, Cleary Gottlieb Steen & Hamilton LLP (‘Cleary’), acting on behalf of the German Defendants (1) denied liability including on the basis that “ a very significant number of your clients' claims will be time-barred in respect to at least some causes of action”; (2) informed the Claimants that Cleary was authorised to accept service on behalf of certain UK domiciled defendants but no other entity (i.e. including the German Defendants).

From 10 November 2021 onwards, the Claimants issued ex parte applications seeking: (i) permission to serve the German Defendants in Germany (the ‘Service Out Applications’) and (ii) extensions of time in order to effect service (the ‘Extension Applications’) (the first of which was dated 10 November 2021 (the ‘10 November 2021 Application’). Those applications were granted (the ‘Service Out Orders’ and the ‘Extension Orders’). Appendix A to the Appellants' Skeleton Argument, and appended as Appendix A to this judgment, tabulates for each of the 31 claim forms the date of issue, the original deadline for service out, the date of Service Out Application, the date of Extension Application(s), the date service out was permitted by Order of Senior Master Fontaine, the date that extensions were granted, the total period of extension granted as a result of Extension Orders by Senior Master Fontaine (ranging between 2 months and 3 days and 1 year, 4 months and 20 days), and the dates of service on each of the two German Defendants.

There is no dispute that the evidence in support of the first 26 applications failed to mention limitation entirely. In due course, it was found that this breached the duty to give full and frank disclosure, and on the appeal before me, there was no cross-appeal in this respect. Five subsequent applications for Service Out Orders (with two of those also seeking Extension Orders) relied upon evidence which referred to limitation, but the Appellants say that this remained in an incomplete and partial manner which still did not amount to full and frank disclosure to the Court.

In early September 2022, the first claim forms were served on the German Defendants in Germany. On 11 October 2022, within the time prescribed by the CPR, the German Defendants made their first applications pursuant to Part 11 to set aside the relevant Service Out and Extension Orders.

On 14 October 2022, Milberg London LLP (“Milberg”), solicitors for the Claimants, provided the German Defendants with a copy (for information purposes only) of a further ex parte application which the Claimants had made on 5 October 2022 for a further extension of time until 31 March 2023 for all claim forms (the “Omnibus Application”). The witness statement served in support of that application (Oldnall 10), did refer to limitation, and asserted that the Claimants would seek to rely on s.32 Limitation Act 1980. The Court granted the Omnibus Application by order dated 20 October 2022 and on 5 December 2022 of its own motion made an order authorising substituted service on Cleary in London.

As more claims were served on them, the German Defendants made additional Part 11 applications in materially the same form. The German Defendants' Part 11 Applications in total related to 31 claim forms which have been served on them pursuant to the Service Out Orders granted by the Court, of which 28 also had the benefit of Extension Orders.

By their Part 11 Applications, the German Defendants sought to set aside the Service Out Orders and the Extension Orders on the basis that (1) the Claimants failed to give full and frank disclosure of, insofar as material to the appeal before me, the limitation defence; (2) no good reasons and/or exceptional circumstances were shown by the Claimants for requiring the extensions of time. The German Defendants have not, within their Part 11 Applications, argued against England being the forum conveniens. They have, in addition, not sought to argue that the Court should not grant permission for the claims to be served in Germany upon them because they do not have a real prospect of success in relation to limitation (the form of Part 11 challenge based upon Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7 [2012] 1 WLR 1804 – asserting that the service out criterion at CPR r.6.37(1)(b) is not met).

The Part 11 Applications were heard by Senior Master Fontaine, (“the Judge”) who had, as the Respondents rightly point out, enormous experience in ex parte applications, as well as managing group litigation within the King's Bench Division. Following a hearing on 15 and 16 June 2023, on 23 October 2023, the Judge handed down her Judgment declining, in the exercise of her discretion, to set aside the orders. At the consequential hearing following the handing down of the Judgment, the Judge imposed a sanction in costs in respect of her finding that there was material nondisclosure of limitation defences available to the German Defendants in the ex parte applications. This required the Claimants, who had ultimately been successful in defeating the German Defendants' Part 11 Applications, nevertheless to pay the German Defendants' costs of the limitation non-disclosure issue on the indemnity basis, and forego some of the costs which they would otherwise have been likely to have received from the German Defendants in respect of the issues which they were successful in opposing. An interim assessment of £105,000 was ordered to be paid (of costs claimed in excess of £230,000).

The Judge refused permission to appeal. I granted permission to appeal by an Order dated 12 February 2024, and heard full argument for a day from Ms Mulcahy KC, for the Appellants, and Mr Heppinstall KC, for the Respondents. I am grateful to each of them, and their respective teams, for the efficient and well-presented arguments.

The Applicable Legal Principles

The Appellate Court's Role

As set out in Royal & Sun Alliance Insurance Plc v T&N Ltd [2002] EWCA Civ 1964, the Court is afforded a wide discretion in the context of case management decisions and, accordingly, a party seeking to overturn such a decision must overcome a high threshold. The ambit of discretion entrusted to the Judge is generous.

An appellate court will only interfere with a discretionary evaluation where an appellant can identify one or more of the follows errors ( Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 per Saini J):

(1) a misdirection in law;

(2) some procedural unfairness or irregularity;

(3) that the Judge took into account irrelevant matters;

(4) that the Judge failed to take account of relevant matters; or

(5) that the Judge made a decision which was “plainly wrong”.

As Saini J then observed, the appellate court's role is to police a very wide perimeter and it will be rare that a judge who has exercised a discretion having regard to relevant considerations will have come to a conclusion outside that perimeter. He also emphasised that the weight to be given to specific factors is a matter for the trial judge and absent some wholly unjustifiable attribution of weight, an appellate court must defer to the trial judge.

I also note the guidance provided by Carr LJ (as she then was) in ST v BAI (SA) trading as Brittany Ferries [2022] EWCA Civ 1037 specific to appeals relating to the exercise of discretion to grant, or refuse, extensions of time under CPR 7.6(2):

“ A rigorous approach to the limited scope of the appellate function may be of particular importance in the context of applications under CPR 7.6(2). In some cases, for example, the result of reversing a decision to grant an extension of time for service may be to deprive the claimant of the opportunity to issue a fresh claim within the relevant limitation period(s).”

Given the numerous Claimants each of whose actions would accrue at different times, it seems likely that the effect of reversing the decisions to grant extensions of time or further extensions of time will be that some of those Claimants' claims would now have expired, but would not have done before (if the extensions of time had not been granted) had a fresh claim had been issued. Given this potential prejudice, it is particularly...