The first battle in the Volkswagen (VW) emissions case – what has been described as the largest group action to come before the English courts – began this week.
Slater & Gordon and Leigh Day are the joint lead solicitors, with several other firms involved, on behalf of approximately 91,000 UK VW vehicle owners.
In a preliminary issues hearing due to last two weeks, Mr Justice Waksman is being asked to decide whether the findings of the EU type-approval authority and the UK Vehicle Certification Agency that affected vehicles were fitted with prohibited defeat devices – in circumstances where VW had not appealed the decisions – are binding on the High Court.
He will also consider whether test cycle detection software fitted in affected cars constituted a defeat device within the meaning of the regulations.
The action is against Volkswagen, Audi, ŠKODA, SEAT, Volkswagen Group United Kingdom Ltd, Volkswagen Financial Services Ltd and authorised dealerships by individuals or businesses who owned or leased vehicles with EA189 engines which were owned or obtained on finance or leased by a claimant on or before 1 January 2016.
Giving his opening statement, Tom De La Mare QC, representing the drivers said a recent analysis from the Department for the Environment, Food and Rural Affairs estimated that exposure to nitrogen dioxide has “an effect on mortality equivalent to 23,500 deaths annually” in the UK.
He claimed the statistics could also be applied on a European level and equate to 1,000 deaths a day.
The so-called ‘Dieselgate’ scandal blew up in September 2015 when the US Environmental Protection Agency issued a notice of violation of the Clean Air Act to the Volkswagen Group.
VW agreed to pay up to $25bn in the US to settle claims from owners, environmental regulators, states and dealers.
The company admitted fitting software to 1.2m of its vehicles in the UK; while out on the road, these vehicles were pumping out up to 40 times the legal limit of potentially lethal nitrogen oxide.
Last month it was alleged that the fix VW put in place to make the cars compliant with emissions laws was, in fact, a second defeat device. VW has also faced claims the fix made some cars dangerously unreliable.
The company argues it has not broken any English law and said in a statement: “Volkswagen Group maintains that there has never been a defeat device installed in any of its vehicles in the UK.”
VW said the specific legal point under consideration is “whether the legal definition of a defeat device is met in certain circumstances”.
Gareth Pope, head of group litigation at Slater & Gordon, which has more than 70,000 of the claimants, said: “This trial will establish once and for all whether the software VW installed into 1.2m vehicles meets the definition of a ‘defeat device’ under European regulations and is a significant milestone in our clients’ attempts to hold VW accountable in the UK.
“This is a decisive point for VW. For years, the carmaker has deceived its customers, marketing cars as complying with emissions standards while all the time knowing they were emitting many time more than the allowed level of toxic pollutants, perpetrating an environmental and health scandal.”
Shazia Yamin, from Leigh Day’s product safety and consumer law team, added: “After four years, I look forward to our clients having their day in court. They believe that Volkswagen not only misled customers but that they also endangered public health with their blatant disregard for safe NOx emission levels and should be held to account.”
If the claimants succeeded at the preliminary issues trial, the claimants would move on to try and establish the losses they suffered, she said.