Ethan Thomas Wragg & Ors v Opel Automobile GmbH & Ors
| Court | King's Bench Division |
| Judge | Mr Justice Constable |
| Neutral Citation | [2024] EWHC 1138 (KB) |
| Date | 14 May 2024 |
| Year | 2024 |
| Counsel | Ann Mulcahy Kc,Charlotte Tan,Sophia Hurst,Adam Heppinstall Kc,Ognjen Miletic,Weishi Yang,Leigh-ann Mulcahy Kc |
Neutral Citation Number : [2024] EWHC 1138 (KB)
Appeal Court Ref : KA-2024-000018
Claim No: QB-2021-001817 & Ors
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ON APPEAL FROM:
SENIOR MASTER FONTAINE
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17 April 2024
Before :
MR JUSTICE CONSTABLE
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Between :
ETHAN THOMAS WRAGG & ORS Respondents/
Claimants
- and -
(1) OPEL AUTOMOBILE GMBH
(2) ADAM OPEL GMBH
Appellants/
Defendants
(3) VAUXHALL MOTORS LIMITED
(4) IBC VEHICLES LIMITED
(5) STELLANTIS FINANCIAL SERVICES UK LIMITED
(6) STELLANTIS & YOU UK LIMITED
(7) VARIOUS OTHERS (ALLEGED AUTHORISED DEALERS)
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Leigh-Ann Mulcahy KC, Charlotte Tan & Sophia Hurst (instructed by Cleary Gottlieb Steen &
Hamilton LLP) for the Appellants
Adam Heppinstall KC, Ognjen Miletic & Weishi Yang (instructed by Milberg London LLP,
Leigh Day LLP, Pogust Goodhead and Keller Postman UK Limited) for the Respondents
Hearing date: 17 April 2024
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Approved Judgment: Wragge v Opel
Mr Justice Constable:
Introduction
1. 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.
2. 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).
3. 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.
4. 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.
5. 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.
6. 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
Page 1
Approved Judgment: Wragge v Opel
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.
7. 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.
8. 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).
9. 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 non-
disclosure 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).
10. 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
Page 2
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