Various Claimants v Mercedes-Benz Group AG and Others
| Jurisdiction | England & Wales |
| Judge | Cockerill,Constable JJ |
| Judgment Date | 25 March 2024 |
| Neutral Citation | [2024] EWHC 695 (KB) |
| Year | 2024 |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2022-002405 and others |
[2024] EWHC 695 (KB)
Mrs Justice Cockerill DBE
Mr Justice Constable
Case No: QB-2022-002405 and others
IN THE HIGH COURT OF JUSTICE
OF ENGLAND AND WALES
KINGS BENCH DIVISION
Rolls Building
Fetter Lane
London
EC4A 1NL
Representation: see Appendix 1
Hearing dates: 11,12,13,14,15 March 2024
APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down remotely by the judge and circulated to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Monday 25 March 2024 at 10:30
Cockerill and
INTRODUCTION
This is a judgment written jointly by the two judges appointed by the President of the King's Bench Division (“PKBD”) to manage the NOx Emissions Group Litigation. Since the Pan NOx hearing and judgment handed down by the PKBD, the two Managing Judges, and Senior Master Cook on 11 December 2023 ( [2023] EWHC 3173 (KB)), there has been one further Progress CMC, and a number of bi-weekly progress update meetings to ensure the preparation for a 5—day CMC was not derailed. Whilst a number of ex tempore rulings were delivered during the course of the CMC dealing with the determination of suitable directions, only two discrete applications gave rise to issues of law which required a reserved judgment. That judgment has, with the permission of the PKBD, been prepared jointly.
At the outset, the Managing Judges wish to thank the parties, their solicitors and the enormous number of counsel, for the way in which they have demonstrated a very significant degree of co-operation in the preparation for and conduct of the 5 day CMC. The scale of the hearing can be discerned from the representation list attached to the judgment. The live hearing was attended by over 100 legal and client representatives. Others attended in an overflow court, with another 96 attendees and groups of attendees joining remotely.
The parties' constructive approach permitted the Managing Judges to grapple effectively with the determination of what the Court considers to be the best route to facilitate the fair resolution of the greatest number of issues which divide the parties in the most efficient way and at the earliest feasible time. The conduct of all parties was a model of the approach necessary to permit focused case-management of pan-GLO litigation and will, no doubt, need to be maintained for litigation of this scale to continue to progress smoothly through the Courts.
THE CPR 31.22 APPLICATION
Background
This is an application by the Mercedes Defendants for an order under CPR 31.22(2) “ prohibiting the collateral use of certain documents that have been disclosed by them even where those documents are or have been read to or by the court, or referred to, at a hearing which has been held in public” (“the 31.22 Application”). The order sought is an interim order: sought until final determination of all claims in the the Mercedes-Benz NOx Emissions Group Litigation, or such other time as the Court considers appropriate.
The effect of such an order would be that – whether referred to in open court or not — the documents can be used for the purposes of this litigation but not otherwise. The consequences of that include non-disclosure of such documents to the public.
This application is made in respect of four categories of documents which the Mercedes Defendants are obliged to disclose to the Claimants but which they consider should not be available for collateral use, i.e. for use beyond these proceedings: (i) Recall Decisions, (ii) KBA Appeal Decisions, (iii) AES/BES Documents which are part of the annexes and enclosures to Voluntary Update Decisions, and (iv) other annexes and enclosures to Type Approval Decisions.
These documents had previously been disclosed into a Confidentiality Ring Order (“CRO”). They were then subject to an earlier application (“the De-designation Application”) by the Claimants to remove them from the scope of the CRO. The Mercedes Defendants opposed their de-designation on the basis that the documents were confidential and/or contained confidential information. The Court held in the De-designation Judgment ( [2024] EWHC 190 (KB)) per Cockerill J that all but one of the documents did not contain any confidential information and were therefore non-confidential. In relation to one document referred to as “the AES/BES Document”, the Court held that the Mercedes Defendants could indicate any information said to be confidential but that treating the whole document as confidential was wrong. We understand that the parties are still in dispute about which portions of that document are confidential. That is emblematic of the strength of feeling on both sides in relation to document disclosure issues.
The Mercedes Defendants maintain that these documents may not be confidential but nevertheless contain sensitive commercial information to which they are entitled to protection on the basis that their publication is not necessary for open justice.
The Law
The basic rule under CPR 31.22 is that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed unless it comes within one of the exceptions in CPR 31.22(1) – agreement, specific court permission or being “read to or by the court, or referred to, at a hearing which has been held in public”. This exception reflects the fundamental open justice principle.
Rule 31.22(2) states:
“(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.”
The Court of Appeal's decision in Lilly Icos Ltd v Pfizer Ltd (No. 2) [2002] WLR 2253 is the leading applicable authority on the application of r 31.22(2). Both parties agree that Lilly Icos stands for the following propositions:
1) The starting point is the principle of open justice, and very good reasons are required to depart from the normal rule of publicity;
2) When considering an application in respect of a particular document, the court should take into account the role that the document has played or will play in the trial, and thus its relevance to the process of public scrutiny of the trial process. The court should start from the assumption that all documents in the case are necessary and relevant for that purpose, and should not accede to general arguments that it would be possible or substantially possible to understand the trial and the judgment without access to a particular document, though in particular cases the centrality of the document to the trial is a factor to be placed in the balance;
3) The court must have in mind any “chilling” effect of an order upon the interests of third parties;
4) The court will require specific reasons why a party would be damaged by the publication of a document. Those reasons will in appropriate cases be weighed in light of the considerations in paragraph 11(2) above. Simple assertions of confidentiality and damage which will be done by publication are insufficient even if supported by both parties.
Discussion
The Mercedes Defendants have identified three reasons in support of the 31.22 Application:
1) The documents contain commercially sensitive material which is not generally available;
2) There is a real risk of harm to the Mercedes Defendants, including the risk of exploitation and loss of confidential status in other jurisdictions (specifically Germany) if collateral use of the documents is permitted;
3) The court cannot at this stage conclude that the principle of open justice requires that the documents be publicly available. The time for that assessment is after trial. An order under r 31.22(2) will not interfere with the running of these proceedings.
The main arguments pursued were essentially the first two of these.
Commercially Sensitive Material
At the centre of the 31.22 Application is the Mercedes Defendants' submission that publication of these documents could cause harm to its commercial interests through (mis)use of sensitive commercial information by competitors and imitators. It is said that collateral use “ could lead to exploitation by its competitors (or other persons interested in imitating Mercedes-Benz's vehicles or their components) of technical and other commercially sensitive information”, which include “ all manufacturers (even those with a longstanding presence in the diesel vehicles market)”. The parallel between these arguments and those advanced in the De-designation Application is striking. They were largely advanced by reference to the same evidence which Cockerill J had essentially rejected in the De-designation Judgment. It was therefore unsurprising that the Claimants contended that this was a naked attempt to go behind that judgment.
The submission for the Mercedes Defendants was that there was no “cutting across” in that it does not follow from the Court's conclusion that a very high degree of protection (a CRO) was unwarranted, that Mercedes is entitled to no protection whatsoever.
The essential problem with this aspect of the argument is similar to that which the Court found in the De-designation Judgment, namely the reliance on blanket assertions of commercial sensitivity in respect of all the information in all the documents – particularly in the light of the conclusions reached about the contents of those documents in that judgment. The burden is on the Mercedes Defendants to...
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