Pan-NOx: The High Court in the driving seat of group diesel litigation

The last few months have seen group litigation on an unprecedented scale being answered by an unprecedented style of muscular case management by the High Court.

Adam Kramer KC

22 Mar 2024

The Volkswagen NOx group claim (NOx means nitrogen oxides) felt large when the Group Litigation Order was finally made in 2018, but was still of a scale with the other GLOs of the time. (And it was larger than the GLO the previous year, the Post Office Group Litigation, which is in the press and on our televisions at the moment.)

But in NOx round two, the High Court has faced a dozen global car manufacturers being sued in group claims also arising out of the NOx  diesel emissions allegations. (The differences from the earlier VW claim are not important for the purposes of this blog, but relate to the type of ‘defeat devices’ said to be employed by the manufacturers in breach of Emissions Regulations.) In response, and following the granting of four further GLOs in 2023 in this wave (Mercedes, BMW, Ford, FCA/Suzuki), the High Court embarked upon what might be called a meta-GLO process of managing the GLOs to avoid court resources being overrun and costs spiralling out of control.

The first pan-NOx hearing

Dame Victoria Sharp, President of the King’s Bench Division, sent a letter on 16 November 2023 to all known parties to the NOx litigation. She invited submissions on how to conduct “pan-NOx litigation” case management, given the scale of the litigation, i.e. 1 million claimants (to be said in an Austin Powers voice by all those who were watching movies in the late 90s). A pan-NOx hearing took place on 8 December 2023, in front of the President, Cockerill and Constable JJ, and Senior Master Cook. It was directed that all nine remaining NOx GLOs should be sought at a hearing on 17-19 January 2024, with dates in February reserved for overflow (see [2023] EWHC 3173 (KB)).

This was much faster than the parties had been expecting. Much faster.

But in as stark an example as I’ve ever seen of bending reality to meet the deadline set by the court, six were ready to be heard in January, with a huge measure of agreement due to a huge amount of work by the parties’ lawyers.  I represented the claimants in January and obtained six GLOs in two days before Senior Master Cook, who made it clear that these were being heard together within a pan-NOx umbrella and uniformity of terms should be the ruling principle save where there was good reason for the contrary (see [2024] EWHC 208 (KB)). The three final GLOs were then agreed without a hearing. That alone is worthy of note: agreement of a Group Litigation Order – a highly complex order to govern a class action – without a hearing. Not normal.

The March pan-NOx hearing

And then in a further pan-NOx hearing on 11-15 March, the shape of the litigation was determined by Cockerill and Constable JJ, as it was directed in December 2023 that it should be. Which would be the lead GLOs alongside Mercedes? Which would take much less part? Let us pause again, to consider this. In the history of the world there have been only around 120 GLOs, and here the Court was deciding which GLOs should be leads, with others as backups in case the first settled, and which should not. In other words, it was picking sample class actions to try in order to resolve a broader group of class actions. This is the groupiest of group litigation. This is a High Court that would have group groupies grouping outside with the paparazzi (who seemed uninterested in this historic test of our case management processes, it must be said).

Despite many acting for more than one party, I counted 58 counsel names on the attendance list, with over 20 silks. Along with a large number from Henderson Chambers (stalwarts of VW and other consumer group litigation), there were many from commercial sets like mine on both sides of the dispute. (Stablemates Catherine Gibaud KC and Peter de Verneuil-Smith KC of 3VB acted for Defendants.) And over a dozen city and other firms acted for Defendants (with Hogan Lovells bagging the prize for representing the largest number of separate defendant groups).  (See the representation list at the end of the [2024] EWHC 695 (KB) on a confidentiality issue in Mercedes.)

The hearing itself was enjoyable and effective, if at times also a little messy (many late draft orders handed around) and for brief periods a slog (well, it can’t all be interesting). The outcome (Mercedes, Ford, Nissan/Renault, and Peugeot/Citroën as leads; a preliminary issue trial in October 2024 on a European law issue; a large defeat device trial in October 2025; a quantum trial in October 2026) is of interest to petrol-litigation-heads, but perhaps not as interesting as this example of – I repeat – muscular case management.

And although perhaps the most muscular, it is not the only example. Very recent memory includes the current Russian aviation insurance disputes, in which all claims were corralled together to set down test hearings on jurisdiction; and before that the COVID-19 business interruption insurance litigation which, after an expedited remote trial and leapfrog Supreme Court appeal during COVID-19 (Adam Kramer Memoirs spoiler alert: that was how my plague years were spent), has matured into a series of test cases actively managed by Cockerill and Jacobs JJ, updates in which are summarised on the Commercial Court’s Active Case Management page.

What a time to be a group litigation lawyer. Readers, do let me know of other muscular case management examples that you have come across in recent times.