Ethan Thomas Wragg & Ors v Opel Automobile GmbH & Ors

Where an appeal has been argued on the basis of particular applications and a later order superseding earlier orders, the consequential order normally follows the issues and manner in which the case was argued. A party cannot generally reopen the merits through more granular submissions or new evidence after judgment.

Extensions of time for service require a good reason and, where limitation is engaged, exceptional circumstances. Delay in processing by the Foreign Process Section may qualify only where it caused the relevant delay. The fact that documents for another claim were lodged with that section does not itself establish good reason.

Material non-disclosure affecting the applicable test may justify setting aside an extension order and refusing to re-grant it.

The judgment concerned the consequences of the successful appeal by Opel Automobile GmbH and Adam Opel GmbH against orders extending time for service out of numerous claims. The claims alleged that Vauxhall-branded diesel vehicles contained unlawful defeat devices.

The earlier appeal judgment set aside the orders arising from the 10 November 2021 application and the Omnibus Application, but left the precise scope of the consequential order for further submissions. The claimants then served substantial fresh evidence and argued that particular claim forms, especially those involving later Foreign Process Section activity, fell outside the appeal judgment.

The issues were whether the claim-specific evidence was admissible, which extension orders were within the judgment’s scope, and the appropriate orders for service and costs.

1. Scope of the order. The court rejected the claimants’ attempt to recast the appeal as a preliminary determination requiring claim-form-by-claim-form analysis. The parties had advanced the case by reference to the 10 November 2021 application and the Omnibus Application. Setting aside the orders arising from those applications, without re-granting extensions, therefore required service of Claim Forms 1–23 and 26–27 to be set aside. Claim Forms 24 and 25 remained validly served against the First Defendant but not the Second Defendant. Claim Forms 28–31 were outside the judgment’s scope because they had been served within the original period.
2. Fresh evidence. Under CPR 52.21(2)(b), an appeal court will not normally receive evidence not before the lower court. The admission of fresh evidence is guided by the special grounds identified in Ladd v Marshall [1954] 1 WLR 1489. Evidence which could and should have been deployed before the Senior Master was inadmissible, particularly when served after argument and judgment.
3. Extensions of time. A later application date did not automatically establish good reason. Foreign Process Section delay could be relevant only where it caused the actual delay in serving the particular claim form. The evidence did not establish good reason, still less exceptional circumstances, for the relevant periods. Material failure to give full and frank disclosure about limitation affected the test and justified setting aside the extension orders and refusing to exercise the discretion afresh.
4. Costs. The German Defendants were the successful parties on the appeal. They were awarded 70% of their appeal costs, with 100% of the costs of the consequentials hearing, all on the standard basis. The claimants were to pay the costs of the late evidence. The court declined indemnity costs.
5. Lapsed claims. Applying the logic of Millburn-Snell v Evans [2011] EWCA Civ 577, the claimants were to pay wasted costs of lapsed proceedings. If like claims were issued within two months, costs that would remain useful in the replacement litigation were not wasted and would be dealt with in that litigation.

• High Court (King’s Bench Division): In the earlier appeal judgment, [2024] EWHC 1138 (KB), Mr Justice Constable set aside the orders arising from the 10 November 2021 and Omnibus Applications and left the precise consequential scope for further submissions.
• High Court (King’s Bench Division): In this judgment, the court determined the consequential orders, set aside service as specified, and made costs directions.