VW refused permission to appeal against High Court ‘defeat devices’ ruling

Volkswagen has been ordered to pay more than £3 million in legal fees and refused permission to appeal against a damning High Court ruling that it installed unlawful “defeat devices” in thousands of its diesel vehicles.

Around 90,000 motorists who bought or leased VW, Audi, Seat and Skoda diesel vehicles took legal action for compensation in the aftermath of the “dieselgate” emissions scandal.

Their lawyers say VW “cheated” European emissions standards, which were designed “to save lives”, by installing unlawful “defeat devices” in its diesel vehicles, meaning the vehicles were emitting up to 40 times the legal limit of nitrogen dioxide when out on the road.

In September 2015, Volkswagen Group announced that 11 million vehicles worldwide, including almost 1.2 million in the UK, were affected, prompting a flurry of litigation around the world.

The aftermath of the scandal has seen VW pay out more than 30 billion euros (£26 billion) in fines, recall costs and civil settlements, and has led to criminal charges by German prosecutors against current and former senior employees.

The English litigation was filed back in 2016, but reached what lawyers described as “a decisive court battle” at a preliminary hearing last December when the High Court was asked to decide whether software installed in VW cars was a “defeat device” under EU regulations.

In a judgment delivered in April, Mr Justice Waksman ruled that “the software function in issue in this case is indeed a defeat device”.

The judge said that “a software function which enables a vehicle to pass the test because (artificially) it operates the vehicle in a way which is bound to pass the test and in which it does not operate on the road is a fundamental subversion of the test and the objective behind it”.

He added: “In other words, it destroys the utility of the test because it makes it impossible for performance under it to be the approximation of normal driving conditions and performance which it is intended to be.”

At a remote hearing on Friday, VW’s lawyers sought permission to appeal against Mr Justice Waksman’s ruling.

But the judge rejected the application, finding that “there are no real prospects of success” for any appeal and no other “compelling reasons” for granting permission to challenge his findings.

VW can, however, still pursue an appeal by applying directly to the Court of Appeal.

The judge also ordered VW to pay more than £3 million in legal fees.

In a statement, Gareth Pope, head of group litigation at Slater and Gordon, which represents around 70,000 claimants, said: “VW is paying the price for failing to do the right thing by its customers.

“The bad news for VW continues. Having lost major issues in the litigation, it has now been ordered to pay millions in costs and has been refused permission to appeal by the judge.

“The judge labelled VW’s arguments for an appeal as ‘hopeless’. It is clear that continuing to fight this unwinnable litigation is misguided and demonstrates its disregard for its customers who simply want VW to say sorry and compensate them as it is doing in the USA, Australia and Germany.

“My clients cannot fathom why they are being treated so appallingly by VW.

“It seems clear that VW has little option but to end this now and settle the case.”

A spokesman for Volkswagen Group confirmed that VW would be pursuing an appeal directly to the Court of Appeal.

He said VW has “openly acknowledged” that it “did not live up to our own standards” on emissions, but that the company “maintains that because customers have not suffered any loss, it does not owe them compensation”.

The spokesman added: “It is important to distinguish between today’s costs award and the compensation the claimants are seeking.

“That money is paid to the claimant law firms and not the claimants, and has no relationship with the merits of the claims.

“It is a standard part of litigation and at previous stages the claimant firms have had to pay part of Volkswagen’s legal fees.”