Aurora Cavallari & Ors v Mercedes-Benz Group AG & Ors

The starting point for confidentiality designations in disclosure is open justice. A confidentiality ring is exceptional. The party seeking departure must provide clear and cogent evidence of a real risk and show that restriction is necessary, not merely convenient, and no wider than necessary. Confidentiality is assessed at the time of decision by reference to the particular information. Past confidentiality, commercial sensitivity and a regulator’s treatment do not establish present confidentiality. A blanket designation is impermissible unless every part of the document is confidential; redaction or gisting should be considered. The iniquity exception can defeat confidentiality where disclosure is justified in the public interest and concerns serious misconduct. It does not require a final finding or proof, but a credible allegation from an apparently reliable source. A regulator’s adverse recall decision may meet that threshold even while under appeal.

Consumers in Dieselgate group litigation applied to remove confidentiality designations from KBA recall decisions, appeal decisions, and annexes and enclosures to vehicle update and type-approval decisions disclosed under a confidentiality ring. The defendants argued that the application was premature under the ring’s procedure and that the documents contained confidential technical and commercial information.

The court considered the notice issue, the principles of open justice and confidentiality, the iniquity exception, and whether blanket designations could be justified for the disputed documents.

1. The application was not dismissed as technically premature. Although made eight working days after the de-designation request, the short notice caused no prejudice, the defendants had reviewed the documents, and determining the issue promoted efficient management of the wider litigation. The court nevertheless warned that future applications must be timely.
2. Open justice was the starting point. The reasoning in Scott v Scott [1913] AC 417 remained sound, and the principle was fundamental to the administration and public understanding of justice. Enhanced confidentiality protection was exceptional. The applicant had to establish necessity, rather than convenience, by clear and cogent evidence, and any restriction had to go no further than necessary. The court also considered the relevant balancing factors for a confidentiality ring, including risk, importance, technical needs and practical disruption.
3. Confidentiality had to be assessed at the time of decision and by reference to the precise information in the document. Subjective commercial sensitivity, a previous confidential status, or a regulator’s designation was not determinative. A whole document or class could not be treated as confidential unless every part was confidential. Specific material had to be identified and justified, with redaction or gisting used where appropriate.
4. The iniquity exception applied where disclosure was justified in the public interest and concerned serious misconduct. It did not require a final finding in the present litigation or proof of wrongdoing. A credible allegation from an apparently reliable source, or a real likelihood of serious misconduct of public importance, was sufficient. The court noted, but did not determine, the possible relevance of regulation 12(9) of the Environmental Information Regulations 2004.
5. The KBA Recall Decisions were regulatory findings that impermissible defeat devices had been used. They therefore fell within the iniquity exception. The fact that they were under appeal did not remove the exception. The technical assertions relied on by the defendants were also too general and insufficiently particularised to justify blanket confidentiality. The same reasoning applied to the KBA Appeal Decisions.
6. Most Annexes and Enclosures were anodyne, publicly available or readily ascertainable and were not shown to contain confidential information. The AES/BES document might contain limited confidential material, but its blanket designation was unjustified. The defendants were allowed seven days to identify and justify any confidential portions.
7. The application was granted accordingly. All disputed documents other than the AES/BES document were to be treated as non-confidential; the AES/BES document was to be reviewed afresh.

not stated in the judgment.