Various Claimants v Nissan Motor Co Ltd & Ors

When deciding whether to make or structure a Group Litigation Order, the court must exercise a flexible case-management discretion directed to proportionality, necessity and the efficient conduct of the litigation as a whole. Information which is costly to obtain and peripheral to the issues then being progressed may properly be deferred until schedules of information are prepared. After-the-event insurance is relevant to the funding assessment but is not a condition precedent to a Group Litigation Order. The court may require defendants to provide information uniquely within their knowledge where this avoids substantial duplicated investigation. Large-scale group litigation should use consistent group issues and proportionate organisational structures, while allowing case-specific procedural directions.

The judgment determined six outstanding applications for Group Litigation Orders in the NOx Emissions Group Litigation, involving approximately 480,000 claims against vehicle manufacturers and associated defendants.

The parties agreed in principle that all six orders should be made. The disputed issues concerned the contents and timing of entries on the Group Register, limitation information, duplicate proceedings, cut-off dates, defeat-device issues, service on foreign defendants, ATE insurance, the composition of a Steering Committee, disclosure concerning authorised dealerships, and notification of changes in legal representation.

1. Group Register information. It was neither proportionate nor necessary at that stage to require identification of each defendant and cause of action, or dates of vehicle acquisition, in the Group Register. The information could be obtained through schedules of information. Until then, it was accepted that claims should be treated as made against all defendants. The court retained a costs discretion, and CPR Part 19 and Practice Direction 19B left the contents of the register to directions appropriate to the complexity and progress of the litigation.
2. Group structure and issues. A proposed standard requirement that claimants confirm they were not pursuing claims in another jurisdiction was unnecessary. Such rare duplication could be addressed by correspondence, strike-out or case-specific applications. The Volvo cut-off dates proposed by the claimants were preferable, having regard to the progress of the litigation and the solicitors’ experience. GLO issues should remain materially consistent across the NOx litigation. The presence of defeat devices and whether they were prohibited under Articles 3(10) and 5(2) of Regulation 2007/715 were distinct issues, and immaterial drafting differences should be avoided.
3. Service and notices. Service of the Peugeot-Citroën claim forms on the French defendants by e-mail to their English solicitors was ordered. The claimants’ proposed 56-day period for responding to Notices of Objection was also adopted.
4. ATE insurance. ATE insurance was not a condition precedent to making a GLO. It was one factor within the court’s discretion, although its absence or uncertainty could weigh heavily where the appropriateness of a GLO was otherwise doubtful. The threshold requirements were satisfied and any detailed concern about funding was better addressed on a security-for-costs application or at costs hearings.
5. Administration and disclosure. The proposed three-tier Steering Committee structure was accepted. The defendants were required to provide authorised-dealership information in the form used in the Mercedes-Benz GLO. Additional wording requiring immediate notification of changes in legal representation was unnecessary.

The decisions were to be incorporated into the draft GLOs for final approval and sealing.

The judgment followed the December Pan-NOx Emissions Hearing and the resulting judgment and directions order handed down on 8 and 11 December 2023. It was a first-instance determination of the outstanding GLO applications.