Dieselgate – All about car

Lawyers for the 85,000 motorists bringing a class action in the UK against VW for its role in dieselgate have questioned whether the technical fix introduced in 2016 can be classified as a second defeat device, in a pre-trial hearing last week. Slater and Gordon, who are leading a consortium of lawyers against VW, represented by Freshfields, raised the point as the dieselgate trial heads towards an important two-week hearing at the High Court in December, four years after the class action was first raised. That trial will be critical to deciding in UK law whether VW fitted a defeat device to the EA189 diesel engine, which powers 1.2m affected VW, Audi, Seat and Skoda models – the first stage of a legal process that could ultimately finish with VW paying out tens of millions of pounds in compensation to owners in 2022. “We have asked VW lots of questions to clarify exactly what the technical fix is doing,” says Gareth Pope, head of group litigation at Slater and Gordon. For its part, VW’s lawyers say the technical fix was completed to standards set by Germany’s automotive technical agency, the KBA, equivalent to the UK’s VCA, and re-engineered the EA189 diesel to the emissions standards it should have had under EU5 regulations. Slater and Gordon is questioning why the technical fix is operating over an ambient temperature range or ‘thermal window’ of 15 deg C to 33 deg C, and below 1000m altitude, suggesting that re-engineered EA189 engines will emit higher levels of pollutants in real-world use outside these conditions. “This information has long been in the public domain and has received media coverage since at least April 2016,” VW told Autocar in a statement. Autocar also understands that VW rejects any suggestion that a ‘thermal window’ can be classified as a defeat device. And given that the EA189 has been re-engineered to the EU5 standard that allows a ‘thermal window’, it seems unlikely that the fix is a second defeat device. However, this detail is significant because it forms part of Slater and Gordon’s case, which must cross three hurdles of proof to be successful, the first being to prove in UK law ‘deceit’ – that VW deceived buyers by selling cars with defeat devices. VW recently settled a class action out of court in Australia affecting around 100,000 cars with damages valued at between Aus$89m (£46.6m) and Aus$130m (£68.2m), equivalent to about $Aus1000 (£524) per owner. Although the Australian court case has no legal bearing in the UK, it suggests VW will find it difficult to win the defeat device legal action in December, but also that damages ultimately will be
Origin: UK lawyers claim VW dieselgate ‘fix’ is second defeat device

Proceedings in the largest legal claim in German history begin against Volkswagen today in relation to the Dieselgate scandal, with owners seeking compensation for either being missold their car or for financial losses as a result of altered emissions or lower resale values. The case is viewed as highly significant for owners of all affected VW products – including cars from the Audi, Porsche, Seat, Skoda and VW brands – as it will likely have a bearing on how the Group approaches legal action in other European territories, including the UK. The VW Group has already reached a settlement with American and Australian owners, but is vigorously defending European claims as a result of what it says are different regulations that it did not breach. To date, the scandal, which broke in 2015, has cost VW more than £30 billion in fines and costs, while it has made a provision of around £1bn for defending its European cases. The law in Germany was changed to allow a group civil action against VW – previously claimants would have had to take individual action. As a result, more than 400,000 owners are said to have grouped together ahead of today’s hearing, while around another 100,000 are said to be still pursuing individual action. They must prove that they were either mis-sold the car, that the technical fix approved by technical authorities has had a detrimental affect on efficiency or that resale values of affected cars have fallen. In defence, VW argues that it did not breach European law by using a device to cheat emissions tests – such was the laxity of wording of the rules – and that the effect of the cheat was to lower NOx emissions, which would have had no immediate financial impact on owners, plus the fix has been independently approved as not negatively altering any emissions criteria. In addition, it says it has compelling evidence that there has been no long-term impact on resale values. Court proceedings in Germany could take up to four years, according to local media reports, by which time effected cars would be at least eight years old, and there are three possible outcomes: VW wins, the claimants win or an out-of-court settlement is reached if the court determines the cost of the case will exceed the likely compensation. Although it is yet to be confirmed, around 85,000 UK owners are reported to have launched a joint action against VW, which will begin in December ahead of a full hearing likely to take place after spring
Origin: VW faces Germany’s largest-ever legal claim for Dieselgate