Pan NOx Emissions Litigations, Re

At the case-management stage, the court should be slow to prevent a party from selecting samples in the manner it considers most suitable for its substantive case. Intervention is justified where the proposed sample is wholly illogical, plainly unrepresentative or practically unworkable. In group litigation, information asymmetry may justify early disclosure, but the applicant must establish necessity and proportionality. The greater the burden of providing documents earlier than usual, the stronger the justification required. Sampling directions should balance technical coverage, proportionality, the practical capacity of the trial, and the need for a sufficient security blanket if other litigation settles.

This was a case-management ruling in group litigation concerning alleged NOx emissions issues involving Ford, Renault and Peugeot Citroën defendants. The parties disputed how representative sample vehicles should be selected, whether limited firmware information should be disclosed before further pleading, how many firmware variants should be covered, the timing of disclosure, and the number of vehicles ultimately to be sampled.

The claimants sought selection informed by firmware prevalence. The defendants preferred selection by vehicle popularity and opposed early firmware disclosure as unnecessary and speculative. The court determined the appropriate basis, extent and timing of disclosure and the provisional number of samples.

1. Sampling methodology. The court would not ordinarily decide at the case-management stage which party’s sampling methodology was technically correct. It should be slow to prevent a party from pursuing a comprehensible selection process. Intervention may be appropriate where the proposed sample is wholly illogical, plainly unrepresentative or practically unworkable.
2. Early disclosure. Information asymmetry is a relevant consideration in applications for early disclosure in group litigation. Early disclosure is not ordinary, and specific documents or classes must still be justified. The burden of justification increases where the order requires disclosure earlier than the usual procedural phase or imposes onerous consequences.
3. Firmware. The claimants had provided a rational explanation for using firmware prevalence in sample selection. Limited firmware disclosure was therefore necessary and proportionate. The court could not fairly resolve the underlying technical dispute without conducting a mini-trial. The disclosure was not a fishing expedition, and the defendants remained free to select additional samples in the manner they considered appropriate.
4. Extent and timing. Disclosure was limited to 100 firmware variants for each defendant ALGLO, giving approximately 70 per cent coverage rather than the disproportionate increase required for approximately 80 per cent coverage. Ford was allowed three weeks. Renault and Nissan were given periods linked to the FBS hearing, and Peugeot Citroën was required to provide the information by 12 July, subject to liberty to apply on evidence.
5. Number of samples. Balancing the security blanket required by the group litigation structure, the number of claimants, the overall cohort, proportionality and the practical limits of a ten-week trial, the appropriate direction was for up to 12 samples, generally six from each claimant and defendant or defendant pair. The parties were encouraged to agree a lower number in light of the technical spread revealed.