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David Brian Batchelor against Opel Automobile (GMBH) and others (Court of Session) [2025] CSOH 18 (13 February 2025)
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[2025] CSOH 18
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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 18
GP10/23
OPINION OF LORD SANDISON
In the cause
DAVID BRIAN BATCHELOR
Representative Party for Pursuers
against
(FIRST) OPEL AUTOMOBILE GMBH
(SECOND) GM DEUTSCHLAND HOLDINGS GMBH
(THIRD) VAUXHALL MOTORS LIMITED
(FOURTH) IBC VEHICLES LIMITED
(FIFTH) STELLANTIS FINANCIAL SERVICES UK LIMITED and
(SIXTH) STELLANTIS & YOU UK LIMITED
Defenders
(Vauxhall & Opel NOx Emissions Group Proceedings)
Representative Party: Middleton, KC, Reid; Pogust Goodhead
Defenders: Ellis, KC, T Young; Morton Fraser MacRoberts LLP
13 February 2025
Introduction
[1]
These are group proceedings in which the pursuing group members seek reparation
for loss and damage said to have been suffered by each of them in consequence of the
claimed presence of prohibited "defeat devices" in terms of Articles 3.10 and 5.2 of EU
2
Regulation 715/2007 ("the Emissions Regulations") in the diesel engines of vehicles which
they bought or leased, or in which they otherwise had an interest. A defeat device operates
to regulate the operation of the emissions control system ("ECS") of diesel engines by
reducing its effectiveness in normal driving conditions. The combustion process of such an
engine gives rise to particulate matter emissions, including nitrogen oxide ("NOx") which is
toxic and harmful to health. An ECS uses techniques such as exhaust gas recirculation,
diesel oxidation catalysation, particulate filtration, selective catalytic reduction and lean
NOx traps to reduce or eliminate such emissions. In these proceedings as in various other
similar litigations before the court it is claimed that the engines in question were designed
in such a way as to reduce the effectiveness of the ECS in real world driving conditions (i.e.
outside regulatory test conditions), as a result of software which interfered with or disabled
its mechanisms in those conditions. It is claimed that regulatory approval for the engines
was obtained without disclosing the use of such defeat devices to the relevant authorities,
allowing the vehicles in which they were present to be put on the market along with a
Certificate of Conformity falsely certifying that the vehicle complied with the legislation in
force at the time it was produced.
[2]
The vehicles in question in these proceedings are said to have been variously
manufactured, marketed, sold or financed by the defenders, who claim that the vehicles had
no such devices, that any device present was not unlawful in terms of the Emissions
Regulations, or that any unlawful device present was the result of mistake or inadvertence.
The representative party's claims have to date been based on publicly available literature,
regulatory authority recall decisions and notices and a limited amount of testing of relevant
vehicle models. In order better to state his case, the representative party now seeks to
recover documents which, it is said, will cast light on the design and operation of the ECS in
3
the relevant engines. The defenders oppose his attempt to recover the documents in
question and at the preliminary hearing I directed that the matter be argued fully before the
court so that the matter could be determined by it.
Relevant Rules of Court
[3]
Chapter 26A of the Rules of the Court of Session 1994 ("Group Procedure") contains
inter alia the following provisions:
"Procedure in group proceedings
26A.3.--(1) Subject to the other provisions of this Chapter, the procedure in
proceedings to which this Chapter applies is to be such as the Lord Ordinary is to
order or direct.
...
Defences
26A.20.--(1) Defences in proceedings to which this Chapter applies are to be in the
form of answers to the summons with any additional statement of facts or legal
grounds on which it is intended to rely.
(2) There is to be appended to the defences in proceedings to which this Chapter
applies a schedule listing the documents founded on or adopted as incorporated in
the defences, which must be lodged as an inventory of productions.
...
Preliminary hearing
26A.21.--(1) An action in proceedings to which this Chapter applies is to call for a
preliminary hearing within 14 days after defences have been lodged.
(2) At the preliminary hearing, the Lord Ordinary ..
(b) may make an order in respect of any of the following matters
...
(iv) disclosure of the identity of witnesses and the existence and
nature of documents relating to the proceedings or authority to
recover documents either generally or specifically;
4
(v) documents constituting, evidencing or relating to the subject-
matter of the proceedings or any correspondence or similar
documents relating to the proceedings to be lodged in process within
a specified period;
...
(e) may make such other order as the Lord Ordinary thinks fit for the efficient
determination of the proceedings.
Lodging of productions for proof
26A.25.--(1) Unless an earlier date is specified by the Lord Ordinary, any document
not previously lodged but required for any proof in proceedings to which this
Chapter applies must be lodged as a production not less than 7 days before the date
fixed for the proof.
Power to make orders
26A.27. At any time before final judgment, the Lord Ordinary may, at the Lord
Ordinary's own instance or on the motion of any party, make such order as the Lord
Ordinary thinks necessary to secure the fair and efficient determination of the
proceedings."
Documents in question
[4]
The representative party has lodged a list of documents in respect of which he asks
the court to order production. He asks for that order to be made either in terms of
RCS26A.21(2)(b)(v) or in the exercise of the court's general powers to grant commission and
diligence for the recovery of documents, as regulated by Chapter 35 of the Rules of Court.
The salient terms of that list (which are mirrored in a Specification of Documents for the
purposes of that part of the motion directed at the grant of commission and diligence) are as
follows:
"Certificates of Conformity
1. A COC delivered by the First, Second, Third and Fourth Defenders under
Article 18.1 of Directive 2007/46/EC of the European Parliament and of the Council,
in respect of each Sample Model (Cond 9).
Vehicle Emissions Control Systems and Devices and NOx Emissions Levels
5
2. All documents (including, but not limited to, NOx emissions levels testing results;
software, hardware and firmware design and specification documents; engine failure
modes, effects and analysis documents; and, written communications between the
First, Second, Third and Fourth Defenders' engineers, between said engineers and
said Defenders' management and between said engineers and said Defenders'
internal regulatory compliance personnel) in the hands of said Defenders, relative to
the design and manufacture of the ECS (including, but not restricted to Exhaust Gas
Recirculation, Diesel Oxidation Catalyst, Diesel Particulate Filter, Selective Catalytic
Reduction and Lean NOx Trap systems, referred to by the Defenders inter alia in
Answers 11.3.1, 11.3.2 and 11.3.4 as `technologies') installed into (i) the 2.0 litre
Insignia vehicle model manufactured in 2010 and (ii) the 2.0 litre Insignia vehicle
model manufactured in 2015 and showing or tending to show:
(a)
the engine used in said models, including the engine model, code and
engine capacity;
(b)
the elements of design of the ECS in said models which sense
temperature, vehicle speed, engine speed, transmission gear, manifold
vacuum or any other parameter for the purpose of activating, modulating,
delaying or deactivating the operation of any part of said models' ECS, so as
to reduce the effectiveness of said ECS as regards NOx emissions (hereinafter
referred to as a `device(s)') (Conds 10 and 11, Answers 11.6, 11.7, 11.10, 11.11,
11.12 and with reference to Article 3.10 of the Emissions Regulations);
(c)
the function and calibration of each software, hardware and firmware
component that is, or contains, such a device(s) in said models (Cond 11 and
Answers 11.5.3, 11.5.8 and 11.7.2.1);
(d)
the mode and parameters of the operation and effect of such a
device(s) on the said models' NOx emissions levels while driven under
regulatory test conditions (Cond 11);
(e)
the mode and parameters of the operation and effect of such a
device(s) on said models' NOx emissions levels while driven outwith
regulatory test conditions (Cond 11);
(f)
the internal analysis conducted by or on behalf of the First, Second,
Third and Fourth Defenders relating to and demonstrative of what amount to
driving `conditions which may reasonably be expected to be encountered' by
said models `in normal vehicle operation and use', in terms of Article 3.10 of
the Emissions Regulations (Answers 10.3, 10.4, 10.5, 12.2 and 12.4);
(g)
the nature, extent and consequences of the engine damage or accident
(if any) which would be sustained to said models without the use and
operation of such a device(s) (Answers 11.5.4, 11.6, 11.7.1, 11.7.2.1 to 11.7.2 to
11.7.2.7, 11.7.3, 11.7.4, 11.7.5, 11.8, 11.9, 11.13.1 and 12.3);
6
(h)
in what way said models could not be operated safely without the use
and operation of such a device(s) (Answers 11.5.4, 11.5.5, 11.7.1, 11.10 and
12.3);
(i)
that such device(s) in said models do not function beyond the
requirements of engine starting (Answer 12.3);
(j)
that the conditions in which such device(s) operate in said models are
substantially included in the test procedures for verifying evaporative
emissions and average tailpipe emissions (Answer 12.3); and
(k)
the levels of NOx (measured in terms of milligrammes per kilometre
or otherwise) emitted by said models when driven both under and outwith
regulatory test conditions (Cond 11).
3. All documents (including, but not limited to, Adam Opel AG's completed written
questionnaire) in the hands of the First, Second, Third and Fourth Defenders, relating
to Adam Opel AG's consideration and compilation of their response to the written
questionnaire issued to them by the European Parliament Committee of Enquiry into
Emissions Measurements in the Automotive Sector in 2016 and showing or tending
to show the nature, design and operation of the SCR systems in the Sample Models
as regards NOx emissions (Cond 14).
Type-Approval Authorities
4. All documents (insofar as not already called for in Call 2 hereof) submitted by the
First, Second, Third and Fourth Defenders to and their correspondence with the
Relevant Type Approval Authorities, in the hands of said Defenders, relevant to the
applications for and granting of Type Approval for (i) the 2.0 litre Insignia vehicle
model manufactured in 2010 and (ii) the 2.0 litre Insignia vehicle model
manufactured in 2015, showing or tending to show (Answer 7):
(a)
the date, nature and content of the application package (including the
`information folder' and `information package', as defined in Articles 3.38 and
3.39 respectively of said Directive 2007/46/EC) for EU Whole Vehicle Type-
Approval submitted to said Relevant Type-Approval Authorities in respect of
said models, insofar as relevant to the NOx emissions of said models (Conds
6.7 and 8);
(b)
the date, nature and content of the application package (as defined in
Call 4(a) hereof) for Emissions Type-Approval of the ECS submitted to said
Relevant Type Approval Authorities, insofar as relevant to the NOx
emissions of said models (Conds 6.7 and 8); and,
(c)
the information provided to the Relevant Type-Approval Authorities
by the First, Second, Third and Fourth Defenders for the purpose of satisfying
said Relevant Type-Approval Authorities that said models conformed to the
7
relevant type approval as regards NOx emissions levels, in accordance with
Regulations 4 and 5 of the Emissions Regulations, and that they met the NOx
emissions limits set out in Annex I thereof (Cond 11).
Regulatory Investigations, Recalls and Software Updates
5. All documents (insofar as not already called for in Paras 2 and 4 hereof) in the
hands of the First, Second, Third and Fourth Defenders, relating to (i) the recall
notices issued by the KBA, RDW and DVSA detailed at Paras (i) to (xxi) in Cond 14;
(ii) the ECS software updates offered to group members following the issuing of
regulatory recall notices, referred to in Cond 12; (iii) the software updates to Euro 6
vehicles referred to in Answer 14.1; and, (iv) the software updates detailed in the
Schedule of Group Members' vehicles lodged by the Defenders at No 7/3 of Process
and referred to in Answer 14.2, showing or tending to show:
(a)
the date, nature, scope, content and outcome of the investigations by
the KBA, RDW and DVSA into the NOx emissions levels of the Sample
Models and the First, Second, Third and Fourth Defenders' responses thereto;
(b)
the date, nature, content and basis of said recall notices issued by the
KBA, RDW and DVSA in relation to the NOx emissions levels of the Sample
Models;
(c)
date, nature and content of and the basis for all objections and appeals
filed or made by or on behalf of the Defenders against said recall decisions,
including but not limited to the appeals filed by the Defenders against the
KBA Recall Notices (Cond 14 and Answer 14); and,
(d)
for each of the Sample Models, to the extent that such recalls and
software updates have been carried out:
(i)
the brand and model (including the engine model, engine
code, engine capacity and production period) relevant thereto;
(ii)
the dates when the First, Second, Third and Fourth Defenders
were first advised that such recalls and update programmes were
required and how and by whom they were so advised;
(iii)
the date when such recalls and software updates were
implemented in the Sample Models by or on behalf of the First,
Second, Third and Fourth Defenders;
(iv)
the nature of all faults, issues and/or emissions strategies that
such recalls and software updates were intended to rectify in relation
to the NOx emissions of Sample Models; and,
(v)
the nature and effect of said recalls and software updates on
the NOx emissions levels of the Sample Models, including details of
(a) what NOx ECS parameters were updated (b) the effect that said
recalls and updates had on the operation of the ECS, with regards to
8
the level of NOx emitted outwith regulatory testing conditions, and
(c) the effects of said recalls and updates in relation to fuel economy,
engine damage and accident, component service life, diesel exhaust
fluid refill interval and driveability.
6. All documents in the hands of the Third Defenders produced by them to the
DVSA in response to the DVSA Market Surveillance Unit's letter to the Third
Defenders dated 15th September 2022 (referred to on Record) showing or tending to
show (Cond 14):
(a)
the Sample Model vehicle types that the Third Defenders had placed
on or sold into the UK market under the requirements of the Emissions
Regulations, along with their start and (where appropriate) end of production
dates;
(b)
which of the Sample Models the Third Defenders had reviewed,
regarding the existence of NOx defeat devices, in light of the European Court
of Justice judgement in CLVC case (No C-693/18);
(c)
the Third Defenders' review findings and their conclusions as to
vehicle NOx emissions compliance for each Sample Model; and,
(d)
the details of any NOx emissions-related improvements that had been
made (in the UK and in other European countries) since type-approval was
originally issued, along with details and an explanation of any emissions-
related hardware and software changes.
7. All documents in the hands of the First, Second, Third and Fourth Defenders,
relating to the KBA's investigation in and after May 2023 into the failure of Opel
Euro 5 engines to comply with emissions standards (referred to on p.44 of the
Annual Report of Stellantis NV, dated 31st December 2023, lodged at No 6/20 of
Process) showing or tending to show (Cond 14):
(a)
in what way(s) said Opel Euro 5 engines had failed to meet said
emissions standards;
(b)
the reason for said failure(s);
(c)
the date, nature and content of the First, Second, Third and Fourth
Defenders' and said Stellantis NV's response to the KBA's request for
information regarding the use of NOx emissions strategies in said engines;
and,
(d)
the date, nature and content of the remedial measures taken by the
First, Second, Third and Fourth Defenders and Stellantis NV to address such
NOx non compliance.
Software Updates and Communications with Authorised Vauxhall Repairers
9
8. All documents in the hands of the First, Second, Third and Fourth Defenders and
the authorised Vauxhall dealerships and repairers (referred to in Condescendence
3.1(iv)), relating to the software updates (referred to in Para 5 hereof) carried out on
the Sample Models from 1st January 2016 to date and showing or tending to show
the reasons given to the group member owners, registered keepers and lessees of
said Sample Models as to why said software updates were required (Cond 12 and
Answer 14).
9. Failing principals, drafts, copies or duplicates of the above or any of them."
[5]
The "Relevant Type-Approval Authorities" referred to in the list are defined as (i) the
German Kraftfahrt-Bundesamt ("KBA"); (ii) the French Ministère de la transition écologique
Direction générale de l'énergie et du climat Service du climat et de l'efficacité énergétique; (iii) the
Italian Ministero delle Infrastrutture e dei Trasporti Dipartimento per i trasporti, la navigazione, gli
affari generali ed il personale; (iv) the Netherlands RDW Divisie Voertuig Regelgeving &
Toelating ("RDW"); (v) the Czech Republic Ministerstvo Dopravy; and (vi) the UK Driving
and Vehicle Standards Agency ("DVSA").
[6]
The "Sample Models" referred to in the list are defined by reference to a schedule of
certain Vauxhall vehicle models appended to the list for which Type-Approval was obtained
between 1 September 2009 (being the date of coming into force of the Euro 5 standard) and
30 September 2019 (being the date of coming into force of the Euro 6d standard).
[7]
It is expressly accepted by the representative party that no documents prepared in
contemplation of litigation should be recovered by either of the mechanisms invoked.
Submissions for the representative party
[8]
On behalf of the representative party, senior counsel submitted that, in the context of
group proceedings, the court had very wide, novel and innovative procedural powers which
could and should be exercised to ensure the fair and efficient progress and determination of
10
the proceedings. The powers given to the Lord Ordinary under RCS26A.21(2)(b)(iv) and (v)
were virtually identical to those given to the Commercial Judge under RCS47.11(1)(iv) and
(v). In Chapter 47 commercial actions, those powers were generally viewed as being wider
than the court's common law powers to grant commission and diligence. The Chapter 26A
powers should be similarly regarded. As paragraph 10 of Practice Note (No 2 of 2020) on
group proceedings stated:
"The procedural framework which is, in parts, based upon the commercial actions
model, provides the court with flexibility about how best to manage group
proceedings. It allows for the early intervention and case management by the court
to deal with what could be potentially complex litigation. The procedure in, and
progress of, group proceedings is under the direct control of the Lord Ordinary, and
the court will take a pro-active approach."
[9]
Chapter 27 of the Rules of Court, dealing generally with documents founded upon or
adopted in pleadings, required such documents to be lodged in process by the party
founding upon or adopting them at the earliest appropriate opportunity, and was expressly
stated to be without prejudice of the power of the court to order production of any
document or to grant commission and diligence for its recovery.
[10]
Proceeding under RCS26A.21, as opposed to by way of commission and diligence,
gave the court greater flexibility on how to deal with the recovery and handling of
documents in various forms and volume. The court had such flexibility when ruling on how
to recover and handle large volumes of documents, and should use its powers to ensure a
fair and proportionate disclosure of information to the representative party which would
enable him to progress his investigations, might well answer the criticisms which the
defenders currently made of his pleadings, and would assist the court in the expedient
determination of the issues. It was submitted that all of the documents sought were relevant
to the proceedings generally, which was the criterion to which RCS26A.21(2)(b)(iv) and (v)
11
directed attention, as well as relating to matters already averred in the pleadings, including
matters upon which the defenders themselves relied. The representative party's pleaded
case was not lacking in essential specification, albeit there presently existed what was
"information asymmetry" between the parties. Comparison was drawn with the
" ... while the Court should always be alert to disallow applications that are nothing
more than "fishing expeditions", in a case such as the present where the case that the
Claimants wish to bring has been clearly articulated in their pleadings and associated
documents, the Court should scrutinise with care any suggestion that the Defendants
do not know the nature of the case they have to meet for the purposes of disclosure
because it has not yet been pleaded with sufficient particularity. In principle, at least,
the Court's approach to the Claimants' assertion that they need further disclosure
should be informed more by the explanations they have given about why they need
the disclosure before pleading a case with full particularity than by the present state
of their pleadings. This is not to cast doubt for a moment upon the equally important
principle that, before this litigation or any part of it can be brought to trial, the
Claimants will be required to plead their case with sufficient particularity so that the
Defendants know what case they have to meet and have a fair opportunity to meet
it. That stage has evidently not yet been reached."
[11]
The question of whether any particular document was exempt from recovery as
having been created post litem motam depended on whether or not it had been prepared in
contemplation of litigation. That was not simply a date-driven conclusion, but involved a
qualitative judgment which could only be made after the document had been produced to
and considered by the court. Similarly, any wider issue of confidentiality which might arise
in the present context could only be decided once the court had examined the document in
relation to which it was asserted. Questions of the expenses of the recovery exercise could
competently be reserved until the conclusion of the case: McGill v Ferrier (1836) 15 S 178.
12
[12]
Paragraphs 2, 4 and 5 of the list set out the documents likely to be of the most general
importance to the representative party's case; the others were directed at more specific
issues, but it was not accepted that they were merely collateral to that case.
[13]
The Certificates of Conformity sought in paragraph 1 of the list of documents were
delivered by the manufacturer to the purchaser of a vehicle and certified to the latter that the
vehicle he had acquired complied with the legislation in force in the European Union at the
time it was produced. Such documents formed part of the direct misrepresentations made
by the defenders to the group members that their vehicles were emissions compliant.
[14]
Paragraph 2 listed documents relevant to the design and function of an ECS in the
Sample Models and how those systems functioned in response to various parameters under
and outwith regulatory test conditions. The list included internal communications between
the relevant engineers working for the defenders. These documents were also relevant to
how the defenders themselves approached emissions compliance and how they
demonstrated it to the regulatory authorities. They were also relevant to the defence of
technical justification which was available. If the reference to the whole range of Sample
Models was thought to give rise to insuperable difficulty, then it could be limited to the
specific Insignia models on which other paragraphs of the list focussed.
[15]
Paragraph 3 related to the compilation of Adam Opel AG's response to a 2016
questionnaire by the European Parliament Committee of Enquiry into Emissions
Measurements in the Automotive Sector. That response, which the representative party had
seen, was highly suggestive of the use of defeat devices.
[16]
Paragraph 4 concerned documents relating to the information submitted to Type-
Approval authorities as part of the application for Whole Vehicle and Emissions Type-
13
Approval, subsequent notifications by those authorities of Type-Approval non-conformity,
and the measures taken by the defenders to render their vehicles emissions compliant.
[17]
Paragraph 5 dealt with regulatory investigations and recalls, the relevance and
significance of which were obvious. Six regulatory authorities had given Type-Approval
and three had issued recall notices.
[18]
Paragraphs 6 and 7 respectively related to the UK DVSA's and the German KBA's
enquiries as to emissions compliance.
[19]
Paragraph 8 related to the ECS software updates carried out on Sample Models in
and after 2016, along with the explanations given therefor to Vauxhall customers by
authorised repairers and dealerships. The documents sought might inform the possible
application of section 6(4) of the Prescription and Limitation (Scotland) Act 1973 to the
representative party's case. If the inclusion of Vauxhall dealerships and repairers was
thought to give rise to difficulty, then reference to them might be omitted.
Submissions for the defenders
[20]
Senior counsel for the defenders invited the court to refuse the representative party's
motions on either of the bases upon which it was presented, or at least radically to reduce
the range of documents to be recovered.
[21]
There was a difference between the court's approach to recovery of documents from
parties to an action when compared to recovery from third parties. In the case of parties, the
court could either authorise commission and diligence or order production of documents.
In the case of third parties, the only method of discovery was by way of commission and
diligence: MacLaren, Court of Session Practice (1916), p. 1056. Scottish courts had historically
refused to grant orders for disclosure of documents from a party unless satisfied by a
14
suitable admission that the documents definitely existed, were within the party's possession
and could be produced, because of the potentially draconian consequences of non-
compliance with such an order: National Exchange Co v Drew and Dick (1858) 20 D 837 at 839,
was at risk of failure to obtemper an order of the court. The terms of the list of documents in
the present application were wholly unsuitable for such an order.
[22]
Secondly, the basic tests for recovery were well-known and familiar to the court. The
documents were required to bear on the issues in dispute as they were formulated in the
pleadings at the time of the motion for recovery. Before the closing of the Record, a party
seeking to recover documents had to show that the documents were necessary for the
purpose of making more pointed and specific that which was averred, or to make adequate
and specific responses to his opponent's averments: Civil Service Building Society v
MacDougall 1988 SC 58 at 61 and 62, 1988 SLT 687 at 689. It was clear that the onus was on
the party applying for the recovery to demonstrate the necessity. It was thus inappropriate
for a pursuer to bring proceedings following which "the first thing he does is to ask this
diligence, in order to ascertain what kind of case he has": Greig v Crosbie (1855) 18 D 193, per
Lord Curriehill at 195. The hallmark of such a "fishing diligence" was a specification that
was not drawn under reference to the issues of fact averred in the party's pleadings or
involved casting a net over as wide an area as possible in the hope that it would recover
something to form the basis of a case not yet averred: Paterson v Paterson 1919 1 SLT 12, per
Lord Hunter at 14; Boyle v Glasgow Royal Infirmary 1969 SC 72 per Lord Guthrie at 79, 1969
SLT 137 at 143; cf. Civil Service Building Society 1988 SC 62, 1988 SLT 689 690.
[23]
It was often said by pursuers in an attempt to justify a broad recovery that the
purpose of a specification was only to allow them to make their pleadings more specific or
15
respond to a defender's pleadings. However, recovery would be refused if the averments
founded on as requiring to be made more specific were themselves far too vague: Scott v
Portsoy Harbour Co (1900) 8 SLT 38, per Lord Low at 40, and the court should always examine
such claims with care given that on analysis such an excuse was often used merely as a cloak
for a fishing diligence: Macrae v British Transport Commission 1957 SC 195, per Lord
President Clyde at 200, 1957 SLT (Notes) 30. Even if the calls in a specification were in
principle relevant to the issues in dispute, the court should in the exercise of its discretion
have regard to factors such as cost, disruption, and generally the proportionality of
authorising a very broad recovery of documents: e.g., Somervell v Somervell (1900) 8 SLT 112,
per Lord Stormonth Darling at 113 114. The question of proportionality ought to include
consideration of the ability of the party seeking recovery to obtain the required information
by other means. In this respect, the representative party's lawyers had already had extensive
contacts with UK government authorities, including correspondence, meetings and
conversations, and apparently did not want the nature and extent of such contact to be fully
disclosed.
[24]
Thirdly, whilst recognising that confidentiality was not an absolute bar to recovery of
documents, the court was required to carry out a balancing exercise which involved
weighing the confidentiality and importance of the documents to the haver against the
degree to which a proper disposal of the litigation would be hampered by non-disclosure:
Healthcare at Home Ltd v CSA [2011] CSOH 22, per Lord Menzies at [8] and [16]. That
consideration took on particular importance where a party to litigation sought to recover
information from a public authority that had acquired information in the exercise of its
statutory functions: cf. Marcel v Commissioner of Police of the Metropolis [1992] Ch 225, [1992] 2
WLR 50. In such cases, the court had to balance very carefully two competing public
16
interests: the public interest that information obtained under compulsory or statutory
powers should not be used for purposes other than those for which the powers were
conferred, and the interest that all relevant information be available to the court in deciding
the dispute: cf. Marcel at 237, per Sir Nicholas Browne-Wilkinson, V-C. The court should
recognise both the private interests of the defenders and the public interest of the regulators
in the former being able to provide answers to the latter which to some degree might be
adverse to their own interests. Such information ought properly to be regarded as
confidential and primarily to be reserved for the specific regulatory purposes engaged only.
A similar point had been made in the context of information gathered by the police in the
course of their investigations and the damage done to the public interest by collateral
disclosure: Bunn v BBC [1999] FSR 70 per Lightman J at 76, [1998] EMLR 846 at 853. That
was a fortiori the case where, as here, the agents for the representative party had (at least in
connection with the corresponding English group litigations) made specific Freedom of
Information Act requests to UK Government authorities and had been provided by those
bodies with such information as they considered they could appropriately disclose under
that legislation.
[25]
Fourthly, the defenders were not obliged to disclose information which had been
produced post litem motam. The preamble to the list of documents sought recognised an
exception for documents produced "in contemplation of litigation"; but many of the
documents on the list represented materials produced by the defenders long after the
relevant threshold and it was appropriate to deal with the issue at this stage, rather than
involving expenditure of resources and then making a decision about what was post litem
motam. The relevant threshold was passed when there was "a real likelihood of a claim".
That was most clearly established in personal injuries claims: More v Brown & Root Wimpey
17
Highland Fabricators Ltd 1983 SLT 669 at 670. Nonetheless, the principles there set out were
clearly applicable mutatis mutandis to any type of claim. In the present case, civil claims for
consumers in relation to NOx emissions from diesel engines were first made against
companies in the Opel/Vauxhall group in Germany in 2017. The first such court claim
against Opel was filed on 31 July 2017. In Austria and the Netherlands proceedings were first
filed in March 2020 and July 2021. The first claims correspondence in the UK was in
England in November 2020. The first claim in England was lodged in May 2021. For all of
the defenders there was a real likelihood of proceedings from at least mid-2017 onwards,
when the first German proceedings were brought making substantially the same allegations
as were made in these proceedings. The legal and regulatory regime for emissions was
harmonised across the EU and the further litigation that followed in other jurisdictions was
in relation to the same alleged issues.
[26]
Finally, given the new and unusual nature of these proceedings, the court should
address or at least have some proposal for dealing with the issue of the cost of the proposed
recovery exercise. The basic rules were clear. A haver, even when a party to the litigation,
was entitled to a fee for his trouble in searching out the documents called for and copying
them to hand them to the commissioner: Forsyth v Pringle Taylor & Lamond Lawson (1906) 14
SLT 658, per Lord Mackenzie at 660. In a modern action, this might legitimately include
outlays on the technology required to perform a search and the time spent by individuals
engaged by the haver in searching for the material through such technology: e.g. Phoenicia
Asset Management Sal v Alexander [2010] CSOH 71, per Lord Hodge at [6] and [9] [11]. The
payment of that fee was a condition precedent to being required to hand over any
documents: Forsyth. That fee was also a personal liability of the solicitor responsible for
citing a haver to any commission, at least in the first instance: RCS35.4(6).
18
[27]
The court should bear in mind a number of background features to the case when
approaching the issue of the recovery of documents. It should have centrally in its mind the
representative party's current averments regarding the alleged "defeat devices". He claimed
that the defeat devices comprised: (a) strategies that modulated exhaust gas recirculation by
reference to a thermal window and "other specific parameters either individually or in
combination including but not limited to load and temperature"; and (b) unspecified
"strategies" within the selective catalytic reduction system. That was the extent of the
representative party's case on Record. He had instructed an expert and the defenders had
repeatedly requested disclosure of that expert's report so that they could understand in
more technical detail the case they had to meet and, more pointedly for present purposes,
the relevance of the requests for recovery of documents being made. No report had been
exhibited, which displayed a lack of candour on the part of the representative party and
gave rise to a reasonable suspicion that he did not in fact know what case he wished to make
and was seeking recovery of documents to help him find out if he had a case at all. More
recently, the representative party had added averments about certain recall notices upon
which he appeared to be relying to some extent, but did not explain their significance to any
of his claims. This issue was inherently collateral. It was for the representative party to
plead and prove his case. Decisions by different administrative bodies in different
jurisdictions (many of which were, in any event, subject to ongoing appeals or challenges
from both consumer bodies and manufacturers) were of limited value to this court in
determining the core issues in dispute. The defenders were reasonably apprehensive that
what was driving these requests was the perception that the regulatory decisions might
disclose or suggest a different case to that which was currently stated. The Court should
further bear in mind the defenders' criticisms of several averments regarding particular
19
grounds of liability alleged as being so vague as to be irrelevant, including the averments of
misrepresentation, fraud, and unlawful means conspiracy.
[28]
The defenders had lodged an affidavit explaining in detail the likely work,
timescales, and cost that would be associated with an exercise of recovery of documents of
the nature sought by the representative party. It could involve 60,000 person hours on
document review alone, an exercise which would necessarily involve huge expense,
estimated at nearly £5 million on an external e-discovery provider before the defenders' own
costs and necessary solicitors' costs were accounted for. It also involved a substantial
timescale of at least six months. That estimated expenditure of resources and time strongly
indicated that a more focused and more relevant order was the only reasonable course to
take.
[29]
Turning to the specifics of the documents sought, the definition of "Relevant Type-
Approval Authorities" was wider than was reasonably necessary. It was only averred that
the German, UK and Dutch Type-Approval Authorities had granted Type-Approval. At the
relevant times, only one Type-Approval Authority had actually granted Type-Approval and
policed it throughout the EU. Calls relating to activity by alleged "Relevant Type-Approval
Authorities" beyond that were likely to widen the searches to beyond what was reasonable.
Further, the schedule of Sample Models was far wider than truly necessary. The current
Group Register had approximately 19,600 entries and the definition of Sample Models
covered 88% of those entries. It was likely that any proof which might take place in the case
would realistically have to proceed using sample vehicles, and those which were not
material to the group as a whole should probably not be part of that sample. Some of the
Sample Models had only one vehicle represented in the group register. Other Sample
Models were clearly outside the scope of the litigation. Further, each vehicle model as
20
described in the Schedule of Sample Models was likely to contain multiple (possibly dozens)
of variants with differences germane to this dispute. There had been no engagement
between the parties as to a sensible and proportionate list of sample vehicles. In the English
proceedings, in the lead cases the parties had, with the benefit of technical input, identified
sample individual vehicles to be representative of all vehicles of the same variant. No other
course was practicable.
[30]
Dealing with paragraph 1 of the list of documents, although it was the defenders'
view that there was no proper Record for this element of the list, they were willing
voluntarily to produce one example Certificate of Conformity for each of the models in the
Schedule of Affected Vehicle Models (in so far as those models existed) within 28 days.
[31]
Turning to paragraph 2 of the list, dealing with vehicle emissions control systems
and devices and NOx emissions levels, this was a fishing exercise. The paragraph bore no
relation to the specific exhaust gas recirculation and selective catalytic reduction "strategies"
alleged by the representative party to constitute defeat devices in the pleadings. It sought all
documents relative to the design and manufacture of the NOx ECS (including, but not
restricted to, the design and manufacture of exhaust gas recirculation, diesel oxidation
catalyst, diesel particulate filter, selective catalytic reduction and lean NOx trap systems).
Most of those documents were irrelevant to the pleaded case. Even if it were relevant, such a
wide disclosure would be wholly disproportionate at this stage. The volume of documents
that would be covered by the paragraph was potentially huge. There was no justification
given for such a broad and unfocused trawl through the defenders' documents. The
representative party appeared not to be founding significantly on his own vague pleadings,
but was trying to found on portions in the defenders' pleadings as justifying recovery. He
did not need to recover information about the design and operation of elements of the
21
emissions control system that he did not allege were prohibited defeat devices. He was
seeking to expand his case into new directions. Further, any investigations undertaken by
the defenders into the operation of the alleged devices and dealing with regulatory inquiries
were confidential and post litem motam, as well as potentially representing the expression of
matters of opinion as opposed to matters of fact.
[32]
In relation to paragraph 3 of the list of documents, it appeared to be sought for the
same general purpose as paragraph 2, and was objected to for the same reasons. The fishing
nature of the paragraph was acute. The Committee of Enquiry was concerned with the
actions of regulatory authorities rather than specifically about the presence of unlawful
defeat devices. The paragraph had no apparent relation to any stated cause of action. The
questionnaire response was publicly available, and as far as the defenders were aware the
representative party already had it.
[33]
Paragraph 4 of the list, dealing with Type-Approval Authorities, was based on the
vaguest possible pleadings to the effect that the first to fourth defenders had "fraudulently
and deceitfully misled the regulators" when applying for type approval. No specification of
that claim had been provided. The matter was collateral to the core issues in dispute, as the
minutiae of the information folder and information package provided to regulators for all of
the Sample Models had no particular relevance to the case or any of the grounds of action.
Any material provided to regulators after Type-Approval was sought and obtained might
well be post litem motam and confidential.
[34]
In relation to paragraph 5, concerning regulatory investigations and recalls, the
paragraph extended beyond the specific regulatory decisions condescended upon by the
representative party, and sought to see if there might be other such decisions to enable the
making of a case not presently set out. More generally, the documents sought were
22
irrelevant as the regulatory decisions had no bearing on the representative party's case or his
grounds of action. It was unlikely that such broad collateral factual investigations and
evidence would help the court determine for itself whether there were prohibited defeat
devices or not. The paragraph also called for the recovery of documents which were post
litem motam and confidential.
[35]
Paragraph 6 sought to recover a response to a letter from a regulatory authority, and
the information called for in that letter. Its effect would be to require the defenders to
provide the findings of any investigations undertaken by them in response to regulatory
activity. The representative party had already been in extensive contact with the relevant
authorities and such information as they considered it proper to make available was likely
already to have been provided to him. Further, the matter was not materially relevant to the
cases made by the representative party in his current pleadings. The material called for was
post litem motam.
[36]
Paragraph 7 sought responses to a further regulatory authority investigation. It went
well beyond the scope of the current averments and in any event the regulatory
investigation in question was irrelevant. The documents called for were post litem motam and
confidential. Paragraph 8 sought recovery of records held not only by the defenders but by
"authorised Vauxhall dealerships and repairers". That would require a very wide and
unreasonable width of searches. Any documents such third parties might hold would
merely be duplicative of what the defenders themselves held and could provide. The
paragraph sought information about software updates on a basis wider than was averred in
the representative party's pleadings.
[37]
If the court was minded to grant some form of order in respect of the representative
party's motion, it had the widest possible powers in terms of RCS26A.27 to make case
23
management orders. The size and scale of recovery sought demanded some degree of case
management. It was questionable whether third parties should have imposed on them the
onerous task of complying with the demands made of them. It would be contrary to
principle to grant an order for the recovery of broad categories of documents that might
exist rather than actual documents which the defenders admitted having. The likely costs of
complying with any order could not accurately be predicted until its precise form was
known, but they might well be extensive. The potential costs of the exercise tended to
emphasise the wholly unreasonable scope of what was being sought. Liability for such costs
in the first instance would fall on the representative party's agents. There was reason to
doubt that it could meet the sort of costs which might be incurred. It would be unjust for the
defenders to have to incur those costs and then be unable to recover them from anyone.
Accordingly, the defenders would seek an order from the court that the representative party
or his agents should provide caution for the costs and expenses likely to be involved. The
defenders had also estimated that it would take them at least six months to complete the
exercise sought by the representative party, and the court should expressly allow them that
length of time to comply with any order made.
Decision
[38]
The powers given to the court relating to the provision of documentary material in
group proceedings are, in common with its powers under the rules governing commercial
and intellectual property actions, wide indeed. RCS26A.21(2)(b)(iv) enables it to order
disclosure of the existence and nature of documents "relating to the proceedings" and to
grant authority for the recovery of documents (apparently without even that very mild
limitation) generally or specifically. I can see no reason why such recovery may not be from
24
persons who are not parties to the proceedings. RCS26A.21(2)(b)(v) further enables the
court to order the lodging (in this instance presumably by a party) of documents
constituting, evidencing or relating to the subject-matter of the proceedings within a
specified period. Those specific provisions are supplemented by the Lord Ordinary's
general power in terms of RCS26A.27 to make such order as he thinks necessary to secure
the fair and efficient determination of the proceedings. One reason for the existence of such
powers is that group proceedings are likely to constitute, as the relative Practice Note puts it
with considerable understatement, "potentially complex litigation". Against that
background, the suggestion that the room for manoeuvre afforded to the court in this
context ought to be regarded as circumscribed by direct reference to the principles which
might operate to determine the disposal of an application to its residual power to grant
commission and diligence for the recovery of documents cannot be accepted. The provision
of the specific powers relating to documentary material granted to the court by Chapter 26A
would have been without meaning were it to be the case that those powers fell to be
exercised in the same way as the general powers of the court to grant commission and
diligence. I therefore propose to consider only that part of the representative party's motion
seeking orders under the provisions of Chapter 26A, and find it unnecessary to deal with the
alternative branch of his motion for the grant of commission and diligence.
[39]
The Chapter 26A powers may be exercised serially i.e., the court might require the
existence and nature of documents to be disclosed in the first instance, and only then order
some or all of the documents so disclosed to be recovered or lodged but there is no
requirement that matters proceed in that way given that the power to order recovery may be
made either "generally or specifically". The consequences of an apparent failure to comply
with an order of the court relating to documents are entirely a matter for the court itself; if a
25
party was able to show that it had done all that it reasonably could to comply with an order
(in the court's estimation, not its own) then any difficulties which had emerged in achieving
full compliance would be unlikely to be visited with meaningful sanction.
[40]
None of that is to say that the underlying rationales of the principles developed in
the context of applications for commission and diligence are now necessarily, to borrow a
phrase famously used in another area of law, merely "old intellectual baggage" (Investors
Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 per Lord
Hoffmann at 912G) ruthlessly to be discarded when considering applications concerning
documentary disclosure and recovery made in group proceedings subject to Chapter 26A.
Those principles were, after all, simply expressions of the requirements of what would
nowadays be called proportionality in the context of a highly adversarial system of dispute
resolution. Although group proceedings (like the other forms of process where rules similar
to those found in Chapter 26A are to be found) remain at their core adversarial, modern
understanding of what that entails by way of the requisite co-operation amongst parties and
between parties and the court, coupled with an increasing recognition of the benefits of
proactive judicial case management, necessarily results in a need for adaptation of the
principles underlying document identification and recovery in order to reflect what now
falls to be regarded as a fair balance amongst the interests which the exercise engages. The
proper application of powers such as those set out in RCS26A.21(2)(b)(iv) and (v) will thus
turn on (a) consideration of how directly or otherwise the material sought to be recovered
appears to bear upon matters properly in (or likely properly to be in) dispute, (b) the
respective positions of the parties in relation to access to potentially significant information
(including their ability or inability to access it without the assistance of the court) and (c) the
26
respective legitimate benefits and burdens (in time, trouble and expense) of the making of
the order sought or something approximating to it.
[41]
While these observations might be thought to pertain with equal or at least similar
force to applications for the grant of commission and diligence more widely, and not simply
to cases involving the exercise of specific powers such as those in Chapters 26A, 47 and 55 of
the Rules of the Court of Session, this is not an appropriate occasion upon which to deal
with such applications. It may be observed, however, that the experience of many
practitioners will be that the principles traditionally said to underlie the grant or refusal of
commission and diligence might be thought presently to be honoured at least as much in the
breach as in the observance, and that may well reflect a tacit acknowledgment of the
significance of the factors underpinning modern concepts of the proper conduct of litigation
to which I have adverted.
[42]
Questions about orders relating to documents to which the description post litem
motam properly applies, and more generally about the import of a claim of confidentiality
pertaining to documents called for, will also arise in the context of applications under
Chapter 26A and its cognates. Dealing with the first of those issues, in previous editions and
in the current edition of Walker and Walker on Evidence, the learned authors observe, under
reference to Anderson v St Andrews Ambulance Association 1942 SC 555, 1942 SLT 278, per Lord
President Normand at 1942 SC 557, 1942 SLT 279 that "The general rule is that no party can
recover from another material which that other party has made in preparing his case" and
go on to say that:
"This, it is thought, is the true meaning of the proposition that communications post
litem motam are confidential. So stated, the proposition is too wide. First, the mere
date of the communication is immaterial. Secondly, an admission, confession or
indeed a casual remark about the dispute is not necessarily confidential. It must be
27
something said or written with a view to preparation of the case" (3rd ed., 2009,
10.3.1; earlier editions at paragraph 394).
[43]
In Marks & Spencer Ltd v British Gas Corporation (No 1) 1983 SLT 196, Lord Hunter
observed at 197 that:
"So far as any clear rules can be derived from the numerous authorities bearing upon
this area of law and practice, one principle would appear to be that reports prepared
shortly after an accident for a person who subsequently becomes a party to litigation
arising out of the accident will not be recoverable if they are prepared and submitted
post litem motam, using that term in the particular sense which it is understood to
convey in the present context. (See Walkers on Evidence, p. 416 .) It is a question of
circumstances whether this particular stage has been reached in any particular case,
but in general it may be said that the contrast is between reports which are designed
to put the person concerned in possession of the true facts, on the one hand, and
reports made in contemplation of judicial proceedings, on the other ..."
The case cited in this connection by the defenders, More v Brown & Root, was similar on its
facts to Anderson and was decided in the same way. I see nothing in it which casts doubt on
the rationale drawn by the learned authors of Walker on Evidence from the latter case, or on
the further observations made by them about the true nature of the concept of post litem
motam documents. It follows that an approach to the status of documents as post litem motam
which turns simply on the date of their compilation or creation cannot properly be adopted.
If the defenders wish to claim that certain documents enjoy that status, they may advance a
reasoned claim in relation to specific documents which they would otherwise be obliged to
disclose, and the court will rule on that claim in that context and on the basis of the true test
set out above.
[44]
Turning to the question of confidentiality more generally, the list of documents
sought by the representative party as ultimately drawn does not ask for any regulatory body
to hand over documents furnished to it by the defenders. This case is accordingly materially
unlike Marcel. It may be that the defenders consider that they have, in relation certain
documents which they would otherwise be obliged to disclose, a claim to confidentiality in
28
the sense that a private or public interest in maintaining the privacy of the material in
question ought to be regarded as outweighing the public interest in the administration of
justice on the basis of the fullest possible information. If so, then again they can assert that
claim in relation to specific documents and the court will rule on the matter as it does in
every other instance where such a claim is asserted. This applies to documents containing or
reflecting matters of opinion as it does to those setting out matters of fact.
[45]
On the issue of the prospective expenses of complying with any order which may be
pronounced, I do not accept that there is any general rule of law, even in the context of the
grant of commission and diligence, that a party to an action is entitled in the first instance to
payment or security from his opponent in respect of the costs of complying with an order for
the recovery of documents. McGill, despite its antiquity, is a decision of the Second Division
which is inconsistent with the existence of any such rule, and rather affirms that the court
has a discretion in this matter, which is precisely what one would expect in a matter
concerning expenses. The decision in the Outer House in Forsyth, while acknowledging
McGill, states no ground for distinguishing it and cites no contrary authority. Forsyth cannot
be regarded as governing the matter. Phoenicia deals with rather different question of the
expenses of a stranger to the litigation in complying with an order granting commission and
diligence, where it is easy to see why payment of reasonable expenses should as a matter of
principle be a pre-condition of document recovery. In the particular context of a document
recovery application made in proceedings subject to Chapter 26A, the wide general
discretion given to the Lord Ordinary further militates against the application of any general
rule such as that for which the defenders contend. Such a rule would have certain practical
disadvantages, such as providing very little incentive indeed for due economy in the
execution of the order, and requiring a subsequent balancing of accounts should it transpire
29
that the ultimate cost of the exercise should rest on the party who required to carry it out.
Overall, I agree with the observation of Lord Medwyn in McGill that there is great
inconvenience in dealing with incidental claims such as this in the course of a litigation, and
propose to reserve the question of the expenses of the document recovery exercise in this
case until a conclusion on the more substantive issues at stake is arrived at.
[46]
Turning to the application of the identified principles to the facts of the present case,
the defenders' offer voluntarily to provide one example Certificate of Conformity for each of
the models in the Schedule of Affected Vehicle Models (in so far as those models exist)
within 28 days was acceptable to the representative party and thus no order of the court is
required in this regard.
[47]
Paragraph 2 of the list in essence seeks recovery of documentation in the hands of the
defenders relative to the design and manufacture of the ECS in two specific models of the 2.0
litre Vauxhall Insignia range, said to represent a substantial proportion of the vehicles with
which group members are concerned. The criticisms advanced by the defenders of this
paragraph largely turned on the claim that the documents in question exceeded by some
measure the averments presently made by the representative party as to the nature of the
unlawful defeat devices said to have been installed in the vehicles manufactured and sold by
the defenders. While that criticism may well be true as a matter of fact, it is not a valid
objection to the recovery sought. The representative party has made allegations about the
presence of defeat devices in those vehicles based, at the very least as a matter of clear
inference, on material emerging from the various regulatory interventions upon which he
condescends. What he is unable at present to do (because of the "information asymmetry"
inherently present in the circumstances of the present case) is to specify in detail the full
features of the alleged defeat devices in question. Any claims to confidentiality or as to the
30
post litem motam status of documents otherwise falling within any this or any other aspect of
the court's order may be advanced simultaneously with their production in a confidential
envelope to the court. I shall make an order for the production by the defenders of the
documents described in paragraph 2.
[48]
Paragraph 3 of the list of documents seeks material which went towards the response
of Adam Opel AG to a European Parliament Committee of Enquiry in 2016 dealing in
particular with the nature, design and operation of the selective catalytic reduction systems
in all Sample Models. I shall not make any order for recovery in terms of this paragraph.
The representative party has the actual response made to the Committee of Enquiry, and the
undoubted interest which he has in the nature, design and operation of the selective catalytic
reduction systems in the defenders' vehicles is adequately catered for by the order which I
am to make in relation to paragraph 2 of the list.
[49]
Paragraph 4 of the list in essence seeks documents submitted to Type-Approval
Authorities by the relevant defenders and in their hands, in connection with the applications
for Type-Approval of the Insignia models already mentioned, and relevant to the NOx
emissions of those models. A substantial part of the representative party's case is that the
relevant defenders fraudulently misled Type-Approval Authorities in the applications in
question. The material sought by the paragraph may well, in conjunction with that sought
by paragraph 2, inform the validity or otherwise of that allegation, which could not
otherwise be established on any direct basis. I shall make an order for production of the
documents sought by this paragraph.
[50]
Paragraph 5 of the list is very widely drawn and seeks recovery of documents in the
hands of the relevant defenders casting light upon the nature of certain recall notices issued
by the KBA, the RDW and the DVSA and the software updates offered in consequence
31
thereof, in relation to all Sample Models. I consider that an order should properly be made
only in relation to parts of the range of documents called for. That order will require the
production of the recall notices in question (i.e., part only of sub-paragraph (b)), and of
documents showing the timing, nature and effect of any consequential software upgrades
carried out (i.e., sub-paragraph (d)). No further order in terms of paragraph 5 will be made.
The order to be made will furnish the representative party with details of the nature of the
problem or problems identified by the regulatory authorities and of any remedial measures
taken. It will not necessarily provide him with details of the investigations undertaken by
the authorities or with what the defenders had to say about the issue of the recalls, but I do
not consider that such details are required by him in order fairly and proportionately to
advance his case.
[51]
Paragraph 6 addresses itself to material produced by the third defender to the DVSA,
and held by that defender, responding to a letter from that authority dealing with the
potential consequences of the decision of the European Court of Justice in the case of CLVC
(No. C-693/18). I do not consider that this material is of central significance to any matter
with which the representative party requires to deal in order fairly to advance his case, and
shall accordingly make no order in terms of this paragraph.
[52]
Paragraph 7 seeks similar material in response to a regulatory investigation by the
KBA. For the same reasons, I do not consider that an order in terms of this paragraph is
reasonably required and will refuse to make any.
[53]
Paragraph 8 seeks recovery of documentation showing what group members were
told about the reasons why software upgrades were required to their vehicles. It did not
appear that the inclusion of Vauxhall dealers and repairers amongst those required to
produce such documents was likely to add anything to the nature of the material which
32
would otherwise be recovered by the grant of the desiderated order, and they will be
excluded from it. Beyond that issue, the documents identified in the paragraph are of
potential relevance to the representative party's case on misrepresentation and, possibly, the
impact of the law of prescription, and I shall make an order in terms of it, subject to the
exception already mentioned.
[54]
The order to be made will, as is usual, include copies or duplicates of the documents
it comprehends if principals are not available.
Disposal
[55]
The case will be put out By Order to discuss the practical implications of the order to
be pronounced along the lines indicated, and in particular to determine the time to be
afforded to the defenders to commence and complete the production of the documents in
question.