Michael Lott & Ors v PSA Automobiles SA & Ors

In complex group litigation, early requests for information or disclosure may be proportionate where they address a real information asymmetry and materially assist the formulation or understanding of the pleaded case. The court should nevertheless avoid requiring a defendant to disclose its substantive defence before the claimant has pleaded.

Pre-action protocols are broad and non-prescriptive. Part 18 requests must concern a disputed matter and be reasonably necessary and proportionate. Early specific disclosure remains exceptional and requires precisely defined documents or categories, although group litigation may make the significance of limited documents easier to establish.

Where disclosure may engage foreign criminal law, the English court retains jurisdiction. It must balance the actual risk of prosecution against the importance of the documents, having regard to comity and possible protective confidentiality measures.

The claimants in a large group of vehicle emissions claims sought enforcement of an earlier case-management order and further information and disclosure before service of generic particulars of claim.

The claims allege that Peugeot, Citroen and DS vehicles contained prohibited defeat devices, including thermal windows, contrary to Articles 3(10) and 5(2) of the Emissions Regulation. The French defendants had not been served but participated in the application and had submitted to the jurisdiction for its purposes.

The application concerned information about model variants and defeat devices, documents from ongoing French criminal investigations, and documents relating to recall campaigns. It also raised the effect of the French Blocking Statute and the use of the Hague Evidence Convention.

1. Disposition. The application to enforce the pre-action order was refused. The defendants had complied by providing a response and 16 documents. No prescriptive order for further pre-action material was appropriate.
2. Jurisdiction and foreign criminal law. The French defendants had submitted to the court’s jurisdiction for the application. Under [2019] EWCA Civ 449, the court could order production despite possible breach of foreign criminal law. The issue was procedural and governed by English law. The court had to balance the actual risk of prosecution against the importance of the documents to the fair disposal of the proceedings, taking account of comity and confidentiality measures.
3. Part 18. The request concerning whether model variants contained defeat devices and how they operated satisfied the threshold requirements in CPR r 18.1 and PD18 para 1.2. It concerned a disputed issue and was reasonably necessary and proportionate in litigation involving tens of thousands of claimants, technical complexity and information asymmetry. The defendants were ordered to provide the information concerning the operation of the alleged devices under request 1(e)(i).
4. The request for the basis on which any device was justified under Article 5(2) was refused. It sought detailed technical material amounting to the defendants’ substantive defence before the claimants had pleaded. It could be revisited if the defence was inadequate.
5. Specific disclosure. Early disclosure before pleadings is exceptional. The applicant must identify documents or categories with reasonable precision and show something important or significant that early disclosure will achieve. Group litigation may make that requirement easier to satisfy, but the request for the broad French criminal investigation file was speculative, insufficiently precise and akin to a fishing expedition. Request 2 was refused.
6. Disclosure relating to the JMK and GUM recalls was ordered or permitted in the limited categories agreed by the defendants. The Hague Convention was not imposed as a condition, because of the unexplained delay and the prejudice it would cause, but confidentiality restrictions and a confidentiality ring were appropriate.

First-instance decision on an application for enforcement, further information and specific disclosure. The judgment refers to the earlier case-management decision reported at [2023] EWHC 858 (QB).