Ethan Thomas Wragg and Others v Opel Automobile GmbH
| Jurisdiction | England & Wales |
| Judge | Master Fontaine |
| Judgment Date | 23 October 2023 |
| Neutral Citation | [2023] EWHC 2632 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2021-001817 and other claims listed in Schedule 1 |
[2023] EWHC 2632 (KB)
Senior Master Fontaine
Case No: QB-2021-001817 and other claims listed in Schedule 1
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Heppinstall KC, Ognjen Miletic and Weishi Yang (instructed by Milberg London LLP, Leigh Day LLP, Pogust Goodhead and Keller Postman UK Limited) for the Claimants
Leigh-Ann Mulcahy KC and Natasha Bennett (instructed by Cleary Gottlieb Steen and Hamilton LLP) for the First and Second Defendants
Hearing dates: 15–16 June 2023
Approved Judgment
SENIOR Master Fontaine
This was the hearing of applications issued by the First and Second Defendants (the “German Defendants”) dated 11 October 2022, 24 January 2023, 17 February 2023 and 20 April 2023 in the claims listed at Schedule 1 to this judgment, for the following orders:
i) To set aside orders for permission to serve claim forms out of the jurisdiction granted in 31 claims, pursuant to CPR Part 11 (the “Part 11 applications”); and
ii) To set aside orders granting extensions of time for service in 29 claims pursuant to CPR 7.6(2) (“the extension applications”).
The applications are opposed by the Claimants.
The witness statements that were before the court are listed in Schedule 2 to this judgment.
The Factual Background to the Claims
This is multi-party litigation in which the Claimants propose have issued an application for a group litigation order (“GLO”). In summary the claims allege that the German Defendants and others installed defeat devices in the emissions control system of Vauxhall-branded vehicles which were acquired by the Claimants. It is alleged that the installation and/or incorporation of such defeat devices in the design of Vauxhall-branded vehicles was unlawful under EU Regulation 2007 715 (the “Emissions Regulation”). The Claimants' primary case is that the Defendants involved in the design and or manufacture of the affected vehicles (the “Manufacturer Defendants”), which includes the German Defendants, dishonestly misled both regulators and consumers, including by making representations in relation to defeat devices and regulatory compliance which they knew to be false or as to which they were reckless as to their truth or falsity. The Claimants advance causes of action in deceit, unlawful means conspiracy and breach of statutory duty against the Manufacturer Defendants. Draft Generic Particulars of Claim have been served pending the hearing of any application for a GLO.
The Part 11 applications
The orders for permission to serve claim forms out of the jurisdiction were made on a without notice basis and without a hearing. The grounds relied upon in the applications are that the Claimants failed, when applying for those orders, to give full and frank disclosure to the court in two respects:
i) the limitation defence available to the German Defendants (“the limitation non-disclosure”); and
ii) the availability of Germany as a potential alternative forum (“the alternative forum non-disclosure”).
Relevant Law
Service out of the jurisdiction
CPR 6.36 provides that:
“In any proceedings to which rule 6. 32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply.”
The general principles to be applied when determining an application under CPR 6.36, were summarised in Altimo Holdings v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 W.L.R. 1804 PC, at [71], [81] and [88] per Lord Collins and in VTB Capital plc v Nutritek International Corp [2012] EWCA Civ 808; [2012] 2 Ll. Rep. 313, CA, at [99] to [101] per Lloyd LJ. Those principles are that a claimant must satisfy the court that:
i) there is a good arguable case that the claim against the foreign defendant falls within one or more of the heads of jurisdiction for which leave to serve out of the jurisdiction may be given as set out in para. 3.1 of PD 6B;
ii) in relation to the foreign defendant to be served with the proceedings, there is a serious issue to be tried on the merits of the claim; and
iii) in all the circumstances:
a) England is clearly or distinctly the appropriate forum for the trial of the dispute (the forum conveniens), and
b) the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.
Duty of Full and Frank Disclosure
It is well recognised that an applicant who makes a without notice application is obliged to make full and frank disclosure of all matters relevant to the court's decision, including matters adverse to the applicant; see King's Bench Guide 2023 at 11.9:
“Where an application is made without notice to the other parties, it is the duty of the applicant to fully disclose all matters relevant to the application, including those matters adverse to the applicant. The application must specifically direct the court to those passages in the evidence which disclose matters adverse to the application. Failure to do so may result in the order being set aside.”
The following authorities contain guidance in relation to the duty of full and frank disclosure.
In Knauf UK GmbH v British Gypsum Ltd [2002] EWCA Civ 1570; [2002] 1 WLR 907 at [65], Henry LJ, when handing down the judgment of the Court, referred to Brink's Mat Ltd v Elcombe and Ors [1980] 1 WLR 1350 and other authorities and stated:
“…those authorities in this court bring their reminder of the essential principles: that there is a “golden rule” that an application for relief without notice must disclose to the court all matters relevant to the exercise of the court's discretion; that failure to observe this rule entitles the court to discharge the order obtained even if the circumstances would otherwise justify the granting of such relief; that a due sense of proportion must be maintained between the desiderata of marking the courts displeasure at the non-disclosure and doing justice between the litigants;”
And in ABC International Finance & Investment Co v Banque Franco Tunisienne [1996] 1 Ll. Rep. 485 at p. 489 Waller LJ said:
“That obligation [ of disclosure] is to bring to the attention of the court any matter, which, if the other party were represented, that party would wish the court to be aware of in the context of exercising its discretion.”
See also p. 491 last paragraph of that judgment:
“It is important to emphasise the duty of disclosure. That duty, …… applies on any ex parte application. The judge who has to deal with an ex parte application is dependent on points which should be drawn to his attention being so drawn clearly.”
See also MRG (Japan) Ltd v Engelhard Metals Japan Ltd [2003] EWHC 3418 (Comm) at [23] per Toulson J (as he then was) to similar effect.
The Alleged Material Non-Disclosure
The Limitation Non-disclosure
The German Defendants allege that the Claimants failed to inform the court when the service out applications were made, that in respect of Claimants who had purchased or leased Vauxhall vehicles prior to six years before the issue of their claim form, their claims in tort for deceit, negligent misstatement, unlawful means conspiracy, and their claims for breach of statutory duty, are prime facie time barred.
Brady-Banzet 3 at §§37 to 47 supports the German Defendants' submissions that the Claimants cannot have been unaware of this issue as it was the subject of correspondence between the parties, initially by the Defendants' solicitors' (“Cleary Gottlieb”) letter dated 13 August 2021, also in Cleary Gottlieb's response to the letter before claim sent by Leigh Day LLP's, (one of the firms of Claimant solicitors), and again in Cleary Gottlieb's letter of 10 May 2022, where Cleary Gottlieb invited the Claimant firms to identify all Claimants who acquired their vehicles more than six years before the relevant claim form was issued. The witness statement also identifies that the Claimant firms have not provided information to the German Defendants to identify how many of the claims brought are time barred, or the information which would enable the German Defendants to identify which claims were time barred on issue. On the basis of the information available to the German Defendants so far, it is estimated by them that of the approximately 75,000 Claimants, there will be thousands of time barred claims.
Brady-Banzet 3 at §§43 – 44 refers to the fact that the Claimant firms stated in correspondence that the Claimants in time barred claims would rely on section 32 of the Limitation Act 1980 (“section 32”) to extend the six year limitation period, but that no information was provided as to the basis on which the Claimants claimed that section 32 would apply, or what it was said was concealed from them, so as to satisfy the requirements of section 32. It is submitted that the limitation problems with some of the claims would have been material to the court's decision on the service out applications had it been drawn to the court's attention, as it would have been relevant to the question of whether such claims raised a serious issue to be tried.
The Alternative Forum Non-Disclosure
The German Defendants also allege that the evidence in support of the service out applications should have drawn attention to the fact that Germany is a plausible alternative forum for the claims advanced against the German Defendants for the following reasons:
i) The German Defendants are domiciled and carry out their business in Germany.
ii) Most of the relevant vehicles were manufactured...
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