Millions of drivers lose initial ‘Dieselgate 2’ High Court battle: Judge rules carmakers broadly did not use emissions-cheating devices

Some of the world’s biggest carmakers on Friday broadly won the first stage of England’s largest class action legal battle over whether some of their diesel vehicles used ‘prohibited defeat devices’ (PDDs).

More than a dozen manufacturers are accused by 1.6 million UK drivers of using devices in diesel models produced from 2009 onwards to cheat official emissions tests.

The vehicles in the claims were made by Mercedes-Benz, Opel and Vauxhall, Nissan and Renault, Volkswagen and Porsche, Peugeot and Citroën, Jaguar Land Rover, Ford, BMW, FCA and Suzuki, Volvo, Hyundai-Kia, Toyota and Mazda.

The 13-week trial, which began in October, saw evidence issued against 20 sample vehicles made by five of the manufacturers – Mercedes-Benz, Renault, Nissan, Ford, and Peugeot and Citroën – with the other manufacturers bound by today’s ruling.

Barristers for motorists told the trial the devices installed in the cars allowed the vehicles to detect when they were being tested and alter the amount of harmful emissions produced so they fell within emissions regulations.

This, they claimed, allowed the vehicles to pass emissions tests when actual outputs were much higher, which meant the cars breached regulations and therefore constituted a breach of contract.

In a 369-page ruling published on Friday afternoon, Lady Justice Cockerill said most of the strategies did not constitute PDDs, with the exception of one in Mercedes cars that was removed in 2015 and another used in some Peugeot-Citroën vehicles.

She said that ‘many of the PDDs alleged do not succeed’, and that as a result of her findings, the ‘ambit of the claim is much reduced’.

For Ford, Renault and Nissan, the judge ruled that the defeat devices did not meet the definition of a PDD and therefore did not breach emissions regulations.

Leigh Day Solicitors, one of the law firms representing the 1.6 million motorists, said the judgment creates a ‘significant divergence between the legal position in Great Britain and much of Europe’.

All five vehicle manufacturers opposed the claims, telling the trial the vehicles’ strategies for controlling emissions were appropriate.

Lawyers for Nissan described the case as ‘fundamentally misconceived’ and barristers for Renault said the claimants were ‘PDD hunting’.

The case followed a High Court ruling in 2020 that Volkswagen installed unlawful ‘defeat devices’ in thousands of its vehicles, in a case that became known as ‘Dieselgate’.

Lady Justice Cockerill said that there was ‘no allegation’ that any of the sample vehicles contained a PDD which was the same as that used by Volkswagen, meaning that ‘any thought that the answer to this case is obvious must therefore be put firmly to one side’.

Representing the claimants, Leigh Day’s senior partner Martyn Day said: ‘The High Court has found that, despite their denials, other manufacturers also used VW-style defeat devices.

‘The Judge has also found that many other defeat devices are lawful because she surprisingly disagreed with the established EU case law on what a defeat device is.

‘If this ruling is followed in Great Britain, then this is now the only significant place in Europe where manufacturers are free to build and sell cars that contain these types of devices.

‘We welcome some of the Judge’s findings, but we think important parts of the decision are disappointing, not least because of the impact on environmental and consumer protection.’

Lawyers representing vehicle owners are now considering whether to seek permission to appeal the judgment.

Those taking legal action either bought, leased or otherwise acquired a vehicle made by one of the companies, with most living in England and Wales.

If successful, the class action was believed to be worth at least £6 billion.

Campaign group Mums for Lungs described the legal judgement as ‘bizarre’ and ‘occasionally contradictory’.

In a statement on Friday, it said: ‘The Court took a very narrow definition of a diesel defeat device, and said in its judgment “if an alternative approach to the meaning of “defeat device” were taken a larger number of defeat devices would be established, including devices in each of the lead manufacturers cars.’

The case centres on harmful nitrogen oxides (NOx) emissions, which are controlled by an emissions control system.

Opening the trial in October last year, Thomas De La Mare KC, for the claimants, said that the manufacturers would ‘rather cheat than comply with the law’.

Alexander Antelme KC, for Renault, said in written submissions that the legal action was based on the ‘false assumption that the features of the “VW Dieselgate” applied across the entire automotive industry’.

BMW (238,454), Vauxhall (193,951), Ford (175,244) and Renault/Nissan (148,893) make up the five manufacturers facing the largest numbers of claimants in the class action.

A further hearing in the claim is due to be held in October.