Lawyers acting for Volkswagen car-owners have urged the company to settle their claims over the ‘Dieselgate’ scandal after the High Court ruled today that it tried to cheat clean air regulations.
The car manufacturer has always refused to accept that it installed the ‘defeat device’ on 1.2m diesel cars to trick compliance tests.
It 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 (NOx).
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.
In the preliminary issues hearing, it was common ground that the engine had a function that could be switched on to reduce the amount of NOx that the cars released, and that the software could detect when this was being tested.
VW argued that this was not a ‘defeat device’ that is specifically prohibited by European law, but Mr Justice Waksman 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.
The judge said: “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.
It further ruled that it was an abuse of process for VW to challenge the KBA’s decision as part of its defence in this litigation when it failed to appeal the KBA’s decision at the time.
Slater & Gordon and Leigh Day are the joint lead solicitors, with several other firms involved.
Gareth Pope, who leads the Slater & Gordon team, said: “This damning judgment confirms what our clients have known for a long time, but which VW has refused to accept: namely that VW fitted defeat devices into millions of vehicles in the UK in order to cheat emissions tests…
“The case exposed VW’s approach to this litigation and its customers – refusing to admit wrong-doing and compensate its customers in favour of running drawn-out and pointless litigation.”
Bozena Michalowska-Howells, head of product safety and consumer law at Leigh Day, added: “Our clients bought their vehicles in good faith and are fully entitled to expect them to comply with the law. Many of our clients have been horrified to find out that they had been driving vehicles which were much more harmful to the environment than they were led to believe.
“We hope that Volkswagen accepts 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 VW through the courts and be faced with further years of litigation to determine their losses.”
Mr Pope agreed that it was now “surely time” for VW to settle the claims “and put this shameful episode behind it”.
Otherwise, the next stage will be for the claimants to try and establish the losses they suffered.
As well as the deception, they are claiming damages for the loss of value of the vehicles they say they suffered after the emissions scandal emerged, including the impact of the so called ‘fix’ VW carried out, but which consumers have complained increases fuel consumption and maintenance costs, hampers performance and even endangers safety.
In a statement, VW said: “While Volkswagen is disappointed that the outcome was not in our favour, the judgment relates only to preliminary issues. To be clear, today’s decision does not determine liability or any issues of causation or loss for any of the causes of action claimed. These remain to be determined by the court as the case continues.
“Volkswagen remains confident in our case that we are not liable to the claimants as alleged and the claimants did not suffer any loss. We will continue to defend our position robustly. Nothing in this decision today changes this. We look forward to making progress with defending the remainder of the case.
“Volkswagen is considering carefully the grounds on which it may seek to appeal today’s decision.”