The Court of Appeal has refused Volkswagen permission to appeal the decision that it tried to cheat clean air regulations.
It said Mr Justice Waksman’s decision on a key preliminary issue in the ‘Dieselgate’ litigation was clearly correct and an appeal would not have a real prospect of success.
VW is being sued by 91,000 UK customers who claim the company deceived them as to their vehicles’ conformity with EU emissions regulations and true value.
While out on the road, driving under real world conditions, these vehicles were found to be pumping out illegal amounts of potentially lethal nitrogen oxide.
The world’s largest carmaker has paid billions of dollars in fines and compensation around the world, but so far refused to settle claims from owners in England and Wales.
VW argued that it did not install a ‘defeat device’ that was specifically prohibited by European law, but Waksman J found that it was, describing various VW’s arguments as “completely irrelevant’, “hopeless”, “highly flawed” and absurd.
The judge said that VW’s own internal documents contradicted its defence in court.
“A software function which enables a vehicle to pass the test because (artificially) it operates the vehicle in a way which is bound to pass the test and in which it does not operate on the road is a fundamental subversion of the test and the objective behind it.
“In other words, it destroys the utility of the test because it makes it impossible for performance under it to be the approximation of normal driving conditions and performance which it is intended to be.”
The court also considered itself bound by an earlier decision of the German regulator, the KBA, that the software amounted to a defeat device.
In refusing permission, the Court of Appeal said the issue of the binding effect of the KBA letters was academic, but in any event it would be “extraordinary” if a decision that something amounted to a defeat device was binding in one member state but not in another
Leigh Day and Slater & Gordon are the joint lead solicitors in the action. Leigh Day associate solicitor Shazia Yamin said the decision was “hugely significant”.
“The legal action against Volkswagen can now proceed and it also blackens the clouds over the headquarters of many other vehicle manufacturers who may have felt that cheating the system was good for business.
“We believe that drivers in this country are owed many millions, if not billions, of pounds after they were mis-sold cars which had far greater emissions than they were led to believe, causing much more harm to the environment and increasing fuel consumption.
“Volkswagen should now accept the court’s decision and we urge them to now do the right thing and put their customers first by entering into settlement negotiations so that our clients are not forced to drag them further through the courts.”
A VW spokeswoman said: “Volkswagen Group is disappointed in the Court of Appeal’s decision but, of course, respects it.”
But she stressed that it did not determine the questions of loss, liability and causation, which will be decided at a trial not before March 2022.
“Volkswagen maintains that because customers have not suffered any loss, it does not owe them compensation. Nevertheless, this is a matter for the main trial in due course.
“Volkswagen has openly acknowledged that, in relation to the emissions issue, we did not live up to our own standards. We are committed to maintaining the trust of the public through programmes such as our €33bn investment into e-mobility, bringing 75 fully electric car models to market by 2029.”