Outer House grants permission for diesel emissions group action against Renault and Nissan

About this case:

• Citation:
  [2024] CSOH 68
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Joseph Mackay sought to be the representative of around 8,500 persons claiming to have suffered loss from the defenders’ behaviour. Both groups of defenders opposed his appointment as representative party and argued that it was inappropriate for both Renault and Nissan to be included in the same group proceedings.

The application was heard by Lord Sandison in the Outer House of the Court of Session. Milligan KC appeared for the applicant, Lord Keen of Elie KC for the first to fifth defenders, and Crawford KC for the sixth to tenth defenders.

Strategic alliance

The proposed group was said to comprise pursuers who had purchased, owned, or leased a Nissan or Renault vehicle containing a Euro 5 or Euro 6 diesel engine. It was understood by the representative party that the two groups, together with Mitsubishi, formed part of a strategic alliance, the strategy for which was determined by a jointly owned entity, Renault Nissan BV. The operation of the alliance had brought about a situation where many Nissan models had engine manufactured by Renault, and vice versa.

Mr Mackay was described as a member of the proposed group willing to act as a representative party, with no special ability or relevant expertise beyond his financial interest. It was noted that an agreement had been reached between Mr MacKay and Quantum Claims under which Quantum Claims undertook to provide funding for the conduct of the litigation.

Senior counsel for the appellant highlighted that the court should be wary of specious complaints by prospective defenders about the suitability of a proposed action for group procedure. He noted that an equivalent action in England and Wales included both Renault and Nissan within the same proceedings. On the suitability of the representative party, the criteria for appointment were limited, and it had been demonstrated that he met those criteria.

For the defenders it was submitted that, even where an engine type or family was common to both Renault and Nissan, there was scope for multiple variables between the two manufacturers. Criticisms were made of the purported group register, which contained members who already had claims ongoing in England and Wales. There were significant differences in the nature and extent of the losses between parties who had owned, rather than leased, an affected vehicle.

Relatively benign view

In his decision, Lord Sandison said of the connection between all the potential pursuers: “Each member of the proposed pursuer group is claiming that a defeat device was fitted in a vehicle in which he had a financial interest of some kind, and that he suffered loss thereby. It seems likely that it will be possible to identify and resolve issues of fact and law which will be of relatively general application to all group members, even though specific issues may require to be determined at sub-group or individual level. The statutory test does not require the issues for resolution in group proceedings to be identical in the case of every member of the group, merely similar or related to each other.”

He added on the prospect of success: “The grounds of action have been articulated to the level required at this stage and, despite their many weaknesses of expression as matters stand, nothing insuperable appears to attend their prosecution. It cannot be said that they will probably succeed in whole or in part, but they may well do, and that suffices for present purposes.”

Turning to the suitability of the representative party, Lord Sandison said: “On the positive side, Mr Mackay has a legitimate personal interest in the proposed proceedings to the extent of his own claim, but no further; is independent of the defenders; has no present conflict of interest with other group members; and can call upon adequate financial resources to act as a representative party. On the other hand, he claims no special abilities or relevant expertise, and has not demonstrated that that he would act fairly and adequately in the interests of group members, or that he is sufficiently competent to conduct the litigation.”

He concluded: “I expect that a more obviously suitable person could have been found, particularly one who could be shown to have experience in considering and acting upon legal advice. Future applications of this kind ought to bear such matters in mind more directly than appears to have been typical so far. However, it is evident that a relatively benign view falls to be taken of the question of suitability to be a representative party if the group proceedings facility is to work as designed in the improvement of access to justice.”

The group proceedings were therefore granted permission to proceed, with Mr Mackay as the representative party, and the case put out for a hearing to settle further orders required for proceedings to continue.