The solicitors leading the Volkswagen (VW) emissions litigation have opened up a new front with an argument that the fix the company put in place was in fact another cheat device.
However, the date for the ‘Dieslegate’ trial has been pushed back from March 2022 to January 2023 as a result.
After the emissions cheat device was exposed, VW promised to put right affected cars, but Slater & Gordon and Leigh Day – the lead solicitors in the case – allege that the fix only made vehicles compliant with emissions limits within a certain air temperature range, meaning that they remained highly polluting for much of the year in the UK.
The firms said evidence that emerged during legal action in Austria suggested cars with updated software designed to bring them in line with legal emissions standards only did so within a narrow “thermal window” of between 15C and 32C.
Beyond that, the range in which the solicitors said the vast majority of car journeys in the UK occur, vehicles would revert to unlawful levels of toxic nitrogen oxide (NOx).
A VW spokesman said the company agreed to the allegation being added to the claim, in the interests of co-operation, but would contest it.
In a preliminary issues ruling in April, the High Court decided that VW tried to cheat clean air regulations by using a so-called defeat device installed on 1.2m diesel cars to trick compliance tests. The Court of Appeal refused permission to appeal in August.
Gareth Pope, lead lawyer from Slater and Gordon, which has 70,000 clients, said: “VW has admitted that the fix is a defeat device, albeit a lawful one, in other European jurisdictions but refused to admit the same in the UK.
“Now that the court has allowed us to pursue this claim, it’s our clients’ intention to show that the fix was an unlawful defeat device and that over a million vehicles in the UK were never properly fixed and are still highly polluting.
“If proven it will undoubtedly cement the view that VW is a corporation that consistently defrauds its customers and pays scant regard to the environment.”
Leigh Day solicitor Shazia Yamin added: “VW reassured customers they would provide a solution to fix these cars but all they appear to have done is replace one problem with another.”
The VW spokesman stressed that adding an additional claim was “a very low hurdle to overcome”.
He went on: “The thermal window was expressly notified to and specifically approved by the German regulator, the KBA. No regulatory authority has found the thermal window in EA189 engines, or indeed any other manufacturers’ vehicles, to be prohibited defeat devices.
“Volkswagen Group and the KBA deny any suggestion that the technical measures were not valid and accordingly the Volkswagen Group will contest this in court.
“The thermal window has been a standard feature in diesel, and indeed some petrol, cars of all manufacturers around the world to help to protect the engine from damage at certain temperatures or to ensure the safe operation of the vehicle.
“Volkswagen remains confident in our case that we are not liable to the claimants as alleged and the claimants did not suffer any loss at all. We will continue to defend our position robustly.”