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In a consequentials hearing yesterday, Lady Justice Cockerill refused to grant permission for the claimants on all their proposed grounds of appeal against her PDD liability judgment, handed down in July (news). The claimants are purchasers of over 1 million motor vehicles suing for damages under group litigation orders, alleging that various motor vehicle manufacturers had used unlawful defeat devices in their systems to control harmful emissions, including nitrous oxides. That judgment held that most of the allegations of defeat devices failed, including all of the allegations against Ford, Nissan, and Renault. The Claimants argued that the findings in the judgment were only decisive in relation to the 20 core sample vehicles considered as part of the proceedings and did not extend to other variants of those vehicles or wider vehicles in the claimant cohort. The judge rejected that submission and refused to let the claimants re-plead or submit further evidence about other vehicles. She also refused to let the Claimants re-open part of the judgment against Nissan and Renault on the basis of new evidence, holding that the two documents in question had been properly disclosed, carried little evidential weight as hearsay evidence and made no difference to her conclusions, which were based on the testing evidence and the jointly agreed position by the parties’ experts. She awarded Nissan and Renault indemnity costs on that application, holding that the application should never have been brought.
The judge did however say that she would grant permission to the manufacturers to appeal against her finding on the actionability of the Emissions Regulations – i.e. that consumers had, in principle, a right to damages in tort where their vehicles contain unlawful defeat devices. The judge also ruled on issues of costs and awarded Nissan and Renault 90% of their total costs to date of the PDD Trial and 100% of their costs for the quantum trial, with a 60% payment on account. The total advance payment owed to all Defendants is expected to be over £100m. Detailed written rulings on all issues are to follow. The claimants will now have a period of time in which to ask the Court of Appeal to reconsider permission to appeal.
George Peretz KC and George Hilton have been acting for Ford in this litigation, and Anneli Howard KC has been acting for Nissan.