Various Claimants v Nissan Motor Company Ltd and Others

Hearing dates: 17 and 18 January 2024

Approved Judgment

This judgment was handed down remotely at 10.00am on 5 th February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).

SENIOR Master Cook

This hearing was convened by the Court to determine six outstanding Group Litigation Order (“GLO”) applications in the NOx Emissions Group Litigation. It follows the NOx Emissions Group Litigation hearing before the President of the King's Bench Division, Mr Justice Constable, Mrs Justice Cockerill and myself on 8 December 2023 (the “December Pan-NOx Emissions Hearing”) and the resulting Judgment Various Claimants v Mercedes-Benz Group AG & Others [2023] EWHC 3173 (KB) and Directions Order handed down on 8 and 11 December 2023 respectively.

At the December Pan-NOx Emissions Hearing the President of the King's Bench Division stated:

“2. This Court is acutely aware that the potential costs involved are enormous and, without active case management, have the potential to become wholly disproportionate to the sums actually involved or in particular the sums (if any) ultimately recoverable by any individual claimant.

3. Finally, the Court has also to be mindful of the potential for these cases, were they each to be permitted to take their own course through the court system with no common management strategy, to place an unacceptable burden upon the Court's own time and resources and significantly to affect the ability of other litigants to have access to the civil justice system.”

And later:

“13. Before turning to the terms of the Order, I should make it clear that although each anticipated GLO application must be considered separately, I consider that such orders will be likely to be appropriate in this litigation as a matter of principle. I can also now approve the GLO in the Ford litigation. All existing GLO applications and any prospective GLO applications intended to be made by any party with an existing issued Claim Form(s) are to be heard at a three-day consolidated hearing before Senior Master Cook on 17th-19th January 2024, with the 14th and 15th February 2024 to be in reserve for additional time, if required.”

The Court has already made GLO orders in the following cases:

i) The Mercedes-Benz Emissions Litigation;

ii) The BMW Emissions Litigation;

iii) The Ford Emissions Litigation;

iv) The FCA/Suzuki Emissions Litigation.

Between them, the six GLO applications comprise in the region of 480,000 claims. The causes of actions pursued are broadly similar to those described by me in the BMW Emissions Litigation GLO Judgment, Allsopp v BMW [2023] EWHC 2710 (KB) at §§8–14, save that; a competition claim only arises in the Volkswagen Emissions Litigation (as in Mercedes-Benz and BMW); claims are advanced against the manufacturer defendants in unlawful means conspiracy only in the Vauxhall claims; and there is no Consumer Credit Act 1974 claim in the Jaguar/Land Rover claims.

I have considered the following witness statements:

i) Nissan-Renault: Gallagher 1, Snelling1, Chandler 1, and Gallagher 3.

ii) Volkswagen-Porsche: Yamin1, Roberts1, and Winterburn 2.

iii) Jaguar Land Rover: Holland 8.

iv) Volvo: Burke 1, Burke 2, and Burke 3.

v) Peugeot-Citroën: Croft 4, Croft 5, and Dobson 3.

vi) Vauxhall-Opel: Oldnall 12, Brady-Banzet 6, and Oldnall 15.

It is clear to me that the parties have been mindful of the Court's direction, made at the December Pan-NOx Emissions Hearing, that the Court expects the parties to cooperate with the aim of ensuring that the costs incurred are proportionate and to reduce the burden placed upon the Court's time and resources. I have also previously indicated that, wherever possible, the terms of future GLOs should mirror those in the existing GLOs given that the claims are broadly similar and having regard to the time and resources already committed to considering and determining the scope of the existing GLOs.

Before me, the parties were agreed in principle that GLOs should be made in all six applications. The terms of the order in the Nissan-Renault Emissions Litigation were agreed by the parties. The terms of the order in the Jaguar Land Rover Emissions Litigation were agreed following the hearing and prior to this judgment.

In the circumstances, I will consider the disputed issues which are common to the remaining four GLO applications and those issues which are specific to individual manufacturers. I will do so by reference to the helpful list of issues which was prepared by counsel for use at the hearing.

Issue 1

This arises in the Volkswagen and Volvo Emissions Litigation and relates to the Group Register. The issue is whether the Group Register should include “ the Defendant(s) against which the Claimant brings Claims, and, in respect of each such Defendant, the causes of action pursued against that Defendant”.

On behalf of the Volkswagen Defendants, Mr Popat KC submitted that provision of this information at the outset is a matter of fundamental fairness. Each Defendant is entitled to know, and has an obvious commercial interest in knowing, the numbers and the identities of the Claimants who are bringing claims against it, and the causes of action which it will have to meet in respect of each claim. Such basic information is plainly of importance to companies facing litigation and potentially significant liabilities.

He drew the Court's attention to Alame & Others v Royal Dutch Shell Plc & Another [2022] EWHC 989 (TCC) where O'Farrell J stated:

“Group litigation cases may differ from other Part 7 or Part 8 claims in that the claim form and the group statement of case on common issues may plead the claim in short or general terms. However, that does not exempt each claimant from the requirement to set out in a schedule to the group statement of case, or in a questionnaire or other pleading in the group register, the facts necessary for the purpose of formulating a complete cause of action.”

Mr Popat KC made the point that certainty as to which claims are being pursued against whom is all the more important in group litigation where the total number of claims in a group may be vast, but the subset pursuing a particular entity, or a particular cause of action, may be low. Further, it is only once such information is received that a Defendant can properly investigate the individual claim against it. He referred to the position of the Finance Defendants and Authorised Dealership Defendants described in Roberts 1 at §24, as such entities may face hundreds of claims or a single claim. They cannot readily identify from the Group Register whether a Claimant even acquired a vehicle from them, and it would not be practical or proportionate for them to review all, possibly 132,000, entries to try to work out which might be applicable to them. Even if such an exercise could be done, it would not be conclusive, as ultimately it is for the Claimants to decide whether they wish to pursue a cause of action. And, following investigation, it may be clear that, for example, the wrong Authorised Dealership has been sued or that the cause of action advanced against the Defendant being sued cannot be maintained. He suggested the fact that the claims may be stayed was a further reason why the information sought should be provided now, as the Defendants may have a potentially significant number of unclarified claims hanging over their heads for a long period.

Mr Popat KC then moved to issues concerning limitation. He referred to Lord Woolf's remarks concerning the relationship between the Claim Form and the Group Register in the case of Boake Allen Limited and others v Her Majesty's Revenue and Customs [2007] UKHL 25:

“[32] Before a GLO can be made it is necessary for each individual potential member who wishes to join the GLO to make an individual claim under CPR Part 7 or Part 8. This in conjunction with the application to register enables the court to determine whether the respective litigants qualify to be a member of the GLO. It also prevents time continuing to run for purposes of limitation of actions. None the less the claim once made will usually almost immediately be of only limited historic interest because what matters is the application to register and the register of the GLO on which all proceedings subject to the GLO are registered…

[33]…In the context of a GLO, a claim form need be no more than the simplest of documents. It needs to...