The High Court of England and Wales has ordered full disclosure of legal documents related to the £6bn diesel emissions case, dismissing arguments from car-makers including Mercedes-Benz, Ford and Nissan, among others.
In a landmark ruling in the NOx emissions litigation, Mr Justice Constable ordered that all previously redacted legal pleadings and witness statements be made public, rejecting claims of commercial confidentiality by the car manufacturers.
The judgment, handed down on Friday (25 July), marks a significant victory for transparency in one of the largest group actions in UK legal history. The case involves more than 1.8 million claimants who allege that diesel vehicles were fitted with “prohibited defeat devices” (PDDs) to manipulate emissions tests.
The court considered applications from media organisations, environmental groups and the claimants for access to unredacted court documents. These included technical details about how the alleged defeat devices operated – information that had previously been withheld on grounds of commercial sensitivity.
Letters in support of the applicants were provided by media organisations, including Reuters and the Financial Times, alongside charities and environmental pressure groups.
In a strongly worded ruling, Mr Justice Constable criticised the manufacturers’ approach to confidentiality, stating he had been “left in no doubt” that the vehicle manufacturers had been “over-zealous both with redactions and the designation of confidentiality”.
He further ruled that “the importance of the public being able to understand the substance of the claims against the lead defendants outweighs any commercial confidentiality in that material”, adding: “It should not be necessary for a member of the public or journalist to physically attend court to understand the allegations.”
Rejecting the manufacturers’ arguments, the judge found that even if the redacted material had been commercially sensitive, “the public interest would remain squarely in favour” of allowing access to the documents due to what appeared to be “credible allegations of serious misconduct”.
He also concluded that the manufacturers had “failed to establish at any level of specificity that there is any meaningful confidentiality remaining in the parameters, values and engineering strategies given the passage of time, regulatory change and obsolescence”.
Accordingly, there was “no justification for retaining the redactions and giving the manufacturers the benefit of a cloak of confidentiality, which would have the effect of disabling the public from understanding the issues in dispute”.
The ruling also addressed redactions in witness statements, particularly those made by Ford and Nissan. The court found that most redactions were unjustified and ordered them to be lifted.
The defendants sought categorisation pursuant to a traffic light system, while the claimant’s application for wholesale de-designation of most documents to fully non-confidential partially failed.
In a partial win for the defendants, the court declined the claimants’ request – although it ruled that, with the exception of certain firmware and diagnostic files, most technical documents relevant to the pleaded issues could now be reported without restriction.
The trial, scheduled to begin in October, will run for 10 weeks and focus on liability issues across a sample of vehicles from the lead defendants.
The defendants were represented by numerous barristers, including leading counsel, instructed by Cleary Gottlieb, Freshfields, Herbert Smith Freehills Kramer, Hogan Lovells, McGuire Woods and Signature Litigation. None of the firms contacted responded to requests for comment.
Environmental groups such as ClientEarth and Mums for Lungs, who were among the interested parties in the application, welcomed the ruling. They were represented by Mishcon de Reya, while the claimants were represented by Leigh Day and Pogust Goodhead.
Shazia Yamin, a partner at Mishcon de Reya, said the applications raised important points of legal principle: “In reaching his decision, the judge has carefully considered the evidence from our clients about the strong public interest in these proceedings and weighed this against arguments of supposed commercial sensitivity advanced by the vehicle manufacturers.”
She added: “This judgment sets a clear precedent that companies cannot simply rely on assertions of confidentiality to keep allegations against them secret.”
The rulings come as the Commercial Court prepares to make witness statements, expert exhibits and other documents essential to the understanding of proceedings in the court publicly available from October.
Jason Woodland, member of the LSLA, said: “The recent decision in the Nox litigation against various car manufacturers highlights the scrutiny the courts will apply to requests from parties to litigation for documents to remain confidential, and underscores the importance of open justice.
“The Commercial Court intends to run a pilot in October whereby witness statements and other key documents will be made available to the public via the CE filing system. There is likely to be a renewed focus from judges on ensuring that confidentiality requests are properly justified and limited to genuinely confidential matters.”
Email your news and story ideas to: [email protected]
