The legal team behind the VW emissions legal action provide an update on the recent Case Management Conference, Volkswagen’s response, and what is happening next in the group litigation.
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On the 30th March we attended court for a costs and case management hearing in front of Mr Justice Waksman who is the managing judge for the litigation. In relation to that, we had to agree a technical document, which is to be used for evidence in the trial. There were a couple of issues where the parties haven’t yet been able to agree the contents of that, and so the judge has ordered that some very limited evidence be obtained in order to resolve those differences.
The court has ordered that parties obtain expert evidence from a German law expert. This is required because Volkswagen now claim that there may have been a reason under German law which prevented them from being able to appeal the decision of the KBA. The KBA is the German regulator and the German regulator found that affected vehicles did contain an unlawful defeat device and the KBA then ruled that these cars be recalled and the device was removed by way of a software fix. That would have been one of the reasons why you would’ve had to have gone to the dealership and had your car fixed, and this is the KBA’s ruling.
Volkswagen has also been ordered to explain to the court why it produced vehicles that operated in two modes. Volkswagen, in their defence, have admitted that the vehicles operate in two modes. So that’s one mode in the test centre and one mode when being driven on the road. What we say is that Volkswagen did this deliberately so as to cheat the emissions tests. Volkswagen have repeatedly evaded answering that question as to why they produced vehicles that operated in two modes and they have now been required by the court to provide that explanation.
So at the moment the team’s working on the disclosure exercise. So as part of the preliminary issues trial Volkswagen have disclosed about 30 thousand documents. Many of those are in German so they’re being translated. We’re going to go through those and find the evidence that supports our claim.
So at the CMC that took place at the end of last month the judge set down certain directions for documents to be disclosed by the relevant parties. We, the claimants, have until the 12th July to inform the defendants as to which further documents we require. This is important because it ensures that the court has sight of all of the relevant documents in relation to the preliminary issues. And it also feeds into expert evidence, which my colleagues are working on to ensure that the expert has sight of all the relevant documents and can consider them before providing that expert report.
When we attended court in March we asked the court to order that the claim be split into two so that it’s essentially running on two tracks that are parallel to each other. The second track that the court has ordered the litigation proceed on the basis of is that of selection of lead claimants. These are essentially test claimants so the court has ordered that test claimants out of a pool of 90 thousand claimants in total be selected on the basis of criteria laid down by the court. So over the summer we’re going to be selecting lead claimants out of a pool of 70 thousand claimants. The idea of that will be to use them as essentially test claimants and they will be selected in accordance with set criteria by the court. We’ll obviously try to find the strongest clients to put forward as test claimants.
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