Various Claimants v Mercedes-Benz Group AG & Ors

Documents referred to or read in a public hearing should ordinarily be available for public use. A party seeking an order under rule 31.22(2) must identify and evidence specific reasons for restricting collateral use. Broad assertions of commercial sensitivity are insufficient. The open justice principle may be qualified where particular material is genuinely sensitive, but any restriction must go no further than justified.

For security for costs against a non-party funder, the court must examine substance rather than form. Funding routed through a solicitor does not automatically fall outside rule 25.14(2)(b). The relevant question includes whether there is a sufficient link between the funding and the costs for which recovery is sought. Disclosure of funding arrangements may be ordered where a security application is a realistic possibility, subject to procedural fairness and the funder’s opportunity to participate.

The judgment concerned two applications arising from case management of the NOx Emissions Group Litigation.

The Mercedes Defendants sought an interim order under rule 31.22(2) restricting collateral use of disclosed documents, including recall decisions, KBA appeal decisions and technical annexes. They relied on commercial sensitivity, possible harm in Germany and the fact that the documents had not yet been assessed for trial relevance.

The Defendants also sought disclosure of funding agreements relating to the claimants represented by Pogust Goodhead, anticipating a possible application for security for costs against the funders under rule 25.14(2)(b). The central issues were the proper application of open justice and whether the funding arrangements could realistically engage the rule.

1. CPR 31.22 application dismissed. The starting point was the open justice principle. Documents read or referred to at a public hearing should be available to the public unless there are good reasons for restriction. Under [2002] WLR 2253, the court must consider the document’s role in the trial, the need for public scrutiny, possible chilling effects and specific evidence of harm.
2. Blanket assertions that categories of documents contained commercially sensitive information did not satisfy that test. The Recall Decisions and KBA Appeal Decisions were likely to be central to the trial and concerned alleged impermissible defeat devices. The defendants therefore failed to justify restricting the documents as a whole. The same reasoning applied to the technical annexes: any genuinely sensitive material required document-specific review and particularisation.
3. Confidentiality in Germany could be taken into account, but it did not require the English court to restrict open justice. Foreign proceedings were distinct, and the English court was not bound by an unpublished or pending foreign decision. The relevant English rules applied equally to domestic and international litigants.
4. Funding disclosure application not presently granted. The court held that rule 25.14(2)(b) required an examination of substance rather than form. Direct contractual relations with the claimants were not essential, and funding paid to a solicitor could in principle contribute to the claimants’ costs. The key question included whether there was a sufficient link between the funding and the costs for which recovery was sought.
5. The funding arrangements might be ordinary working-capital finance, or might in substance fund litigation in return for a share of recoveries. That factual question could only be determined by examining the arrangements. The defendants’ proposed security application was more than fanciful, given the evidence concerning the funder’s repayment mechanism and security over receivables.
6. Nevertheless, disclosure was declined at that stage. The issue should be revisited after costs budgets had been fixed, after the claimants had addressed the proposed ATE insurance, and with any funder against whom disclosure was sought joined or present to make submissions.