What are the allegations against VW?
5. What legal action (claim) is the VW emissions Action Group going to make?
6. What is it alleged that VW did wrong?
7. What are the rules that govern the sale of motor vehicles?
Joining the group?
8. Why should I claim?
9. What are you asking me to do?
10. What is the VW Emissions Action Group?
11. What will it cost me?
12. How can I be part of the claim?
13. What do I need to do in order to join the claim?
14. What if I want to make a different claim?
15. Who can bring a claim?
16. How do I know if my car is affected?
17. I bought my car in Scotland / Northern Ireland. Can I join the Group Action?
18. Can I still bring a claim if I have sold my affected vehicle?
How it works
19. In which Court has the case been brought?
20. What is a Group Litigation Order?
21. What is a Group Action?
22. What documents / information do I need to keep or have to be part of the claim?
23. What barristers are the VW emission action group using?
24. Will I have to go to Court if I appoint the VW actions group to represent me?
25. Who are the defendants?
Financial matters26. How much compensation will I get?
27. What is the loss that is being claimed for?
28. Can we seek to punish VW for its alleged conduct?
29. How much of the compensation I am awarded will I get to keep?
30. What is Third Party Funding?
31. Will I get a new car if you win the litigation?
32. How do Harcus Sinclair, Slater and Gordon and the Third Party Funder get paid?
33. Do I still need to be making my monthly payments to VW Financial Services if I am suing VW?
What being in the claim will mean for me
37. Can I speak to a lawyer about the progress of the claim?
38. How long will the litigation take?
39. How will I know what the outcome is and what happens next?
40. What are my risks?
41. How can I sign up for updates?
42. What if I have already signed up with another group?
43. What happens if I want to leave the Group Action once it has commenced?
VW’s response to the claim and the proposed ‘fix’
44. What does VW say about the claim?
45. What is VW’s position on the application for a Group Litigation Order?
46. Why has news of the VW Emissions Issue died down?
47. What is VW doing about this?
48. What is the ‘fix’?
49. Are there any concerns with the ‘fix’?
50. Do I need to have the ‘fix’ carried out?
51. Can I still be a part of the Group Action if I do / do not have the ‘fix’?
52. Hasn’t VW compensated American owners already?
53. Why isn’t VW offering the same to UK owners?
Background to the claim
On 18 September 2015, the US Environmental Protection Agency ordered Volkswagen to recall 482,000 cars that were found to be producing up to 40 times more emissions than permitted.
On 22 September 2015, Volkswagen admitted that 11 million cars worldwide were fitted with an algorithm built into the car’s engine management software. The software recognised when the car was being tested for emissions, and manipulated engine performance to produce a lower nitrogen oxide (NOx) reading.
We allege that this algorithm was a ‘defeat device’ which meant that – in the real world – affected vehicles were producing more emissions than UK regulations allowed.
The issue is not confined to Volkswagens, and includes all cars manufactured by the Volkswagen Group, namely Volkswagen, Audi, Skoda and SEAT.
The claimants allege that Volkswagen engaged in deceit when it sold vehicles fitted with the ‘defeat device’ and seek compensation.
VW’s then Chief Executive has said he was ‘deeply sorry’ for the incident. However, the company has not admitted any wrongdoing. Instead, VW promised to recall and fix any affected vehicle by the end of 2017.
Following proceedings brought in the US, VW has entered into a £14.1 billion settlement to compensate affected owners in the US and to fund clean air projects. By comparison, VW has failed to offer any compensation to owners of affected vehicles elsewhere.
The Transport Select Committee, made up of MPs from all parties, has criticised the Department for Transport in doing very little to hold VW to account. Similarly, the EU has been unable to fine VW and so is now looking to Member States to bring action and has recently said it plans to take legal action against the UK and Germany for not doing enough.
The Mayor of London, a ‘champion for clean air’, has demanded that VW pay £2.5 million to TFL for lost congestion charge revenue from the 80,000 affected vehicles that been contributing to London’s pollution levels. He has said that he will use the £2.5 million to fund a new schools air quality programme.
What are the allegations against VW?5. What legal action (claim) is the VW emissions Action Group going to make?
The Claimants have alleged that:
It is alleged that the VW Group committed the tort of deceit (which is a type of fraudulent misrepresentation), and breached the Consumer Credit Act 1974 (where financing was provided by VW for the car purchase).
Full details of the claim are set out in the Generic Particulars of Claim, which are available in draft on the registration website.
In joining the action, you will authorise us to sign a Statement of Truth on your behalf in relation to the Generic Particulars of Claim.
The Generic Particulars of Claim allege that VW engaged in the following misrepresentations in the sale of the affected vehicles:
(together, the ‘Causing or Permitting the Vehicles to be put into service Misrepresentation’).
The relevant regulations are:
Together these statutes and regulations work like this:
Accordingly, before it can be sold, registered or driven in the UK, a vehicle must comply with the NOx emissions limits provided in Annex 1 to the Emissions Regulations – not only, in official testing – but also in normal use.
Joining the group?
There are many reasons why we believe you should join the claim. The key reasons for doing so, however, are as follows:
We are asking you to join the group action, by completing the two-stage sign-up process on this website.
Through this process, you will:
Given the number of affected vehicles, it would be impossible for us to take instructions from each and every individual claimant. The appointment of a committee is therefore the mechanism by which we are able to bring proceedings on behalf of everyone that joins the claim. The legal proceedings will aim to bring the VW Group to account for the emissions scandal and to obtain compensation for affected cars owners.
Harcus Sinclair UK Limited is leading the claim against VW and is being supported by Slater and Gordon. The firms are working together to ensure the best possible outcome for as many affected vehicle owners as possible. The VW Emissions Action Group is therefore a combined force of law firms and their clients seeking to bring VW to account for their actions.
The litigation will be funded by a third party litigation funder. Accordingly, there will be no cost to you for joining or participating in the group action.
If we lose the claim, the funder will lose all of its investment. To offset its risk, the litigation funder will take a fee from the compensation awarded if we are successful. You should however still receive 70% of your proportionate share of compensation. If we lose the claim, we will not charge you for our time or the costs we have incurred on your behalf. The funder will simply lose its investment.
If you are an owner or have owned an affected vehicle, whether it was purchased new or second hand, you can join the claim by completing the process on this website.
You can instruct us to claim if you have already sold the car. You can also instruct us to claim if you bought the car outright with cash, or financed it through Volkswagen Financial Services or through any other form of financing.
Joining the claim is straightforward. You need to complete the two-stage sign up process on the website. To be eligible to join the claim, you must have, or have had, an affected vehicle. If you have never had an affected vehicle then you are not eligible to participate.
You also need to signal your agreement to a number of documents in order for us to act for you. If you do not do so, you cannot join the claim as we will not have the necessary authority to act for you.
We are only bringing those claims that have been set out in the Generic Particulars of Claim.
We acknowledge that you might have additional claims against the VW Group, or have suffered more loss than the average owner. However, we are unable to pursue those individual claims or losses as part of this Group Action.
In order to make this litigation economically viable, it is necessary to concentrate on those aspects that are common to as many individual consumers as possible. If you wish to bring a different claim you will need to seek advice from another solicitor.
You can join the action if you purchased or owned an affected vehicle, whether it was purchased new or second hand.
You can also participate if you have already sold the affected vehicle, provided that you have proof of your previous ownership (including the vehicle’s VIN number).
You can also instruct us to claim if you bought the car outright with cash, or financed it through Volkswagen Financial Services or through any other form of financing.
You should by now have received a letter confirming your car’s situation by the relevant manufacturer. You can also check to see if your car is affected below:
Unfortunately we are unable to act for those people who purchased their cars in Scotland or Northern Ireland. We are investigating how we might help though, and will keep you updated on our progress if you register your interest here.
If you purchased your car in England or Wales and now live in Scotland or Northern Ireland then you can join the action, if you can provide proof of where you purchased the car.
Yes, so long as you provide evidence of your previous ownership.
How it works
The claims will be brought in the High Court in London due to the complexity and overall value of the claim.
A Group Litigation Order (‘GLO’) is a court order that allows a large number of individual cases to be managed together which share common or related issues of fact or law. In a case such as this where the level of compensation per affected vehicle is relatively low, it would not be economically possible to bring claims individually. A GLO is the accepted way to administer and manage group claims in England and Wales
Harcus Sinclair has applied for a GLO, and the hearing of this application is scheduled to take place on 30th January 2017.
A Group Action is the nearest UK equivalent to an US class action.
US class actions operate on an ‘opt-out’ basis. That is, a claimant asks the court to certify a class of persons who have a common legal issue to be determined. If the class is certified, then all persons who fall within the class definition are included in the claim unless they opt out.
In a UK Group Action, claimants must ‘opt in’ to the litigation from the outset. If you do not join the group, then you will not be a claimant and you will not benefit in the event of a successful outcome.
A GLO may be ordered if a number of individuals have claims involving a sufficiently common issue of fact or law, and if the Court believes that the interests of justice are best served by dealing with all of the cases together.
A relatively small number of test cases are chosen, and the court will make findings in respect of those cases that can then be applied to the whole group. This allows a volume of cases to be determined quickly (because the Court does not have to hear each and every case) and dramatically reduces legal costs (because they are shared amongst all of the claimants).
It is important that you retain any documents that might be relevant to the case. For example, car brochures, documents relating to your purchase, finance documents and any other documents which were relevant to your decision to purchase the affected vehicle.
If you no longer have those documents then you are still likely to be eligible to participate.
In order to minimise legal costs, we ask that you do not send the documents to us at this stage. We will request them from you when they are required.
We have instructed Oliver Campbell QC, Adam Heppinstall and Nazeer Chowdhury of Henderson Chambers in relation to the claims we are alleging against the VW Group.
In addition we have instructed Gregory Treverton-Jones QC of 39 Essex Chambers to advise this firm on the propriety of the group arrangements we have in place to ensure that we are compliant with our regulatory obligations. Mr Treverton-Jones QC has approved, from a regulatory perspective, all of the documents you will be agreeing to before you are able to join the claim.
We have also instructed Alexander Hutton QC of Hailsham Chambers to advise on the funding arrangements in place and to ensure that the claimants’ financial interests are protected.
All members of the Counsel team are very experienced and well-regarded in their field.
It is very unlikely that you will need to attend Court.
If a GLO is granted then the Court will likely select a number of test cases that will be representative of the merits and validity of all claims.
These test cases will be seen by the Court as representative of the merits and validity of the claim. The chances of your being a test claimant are clearly slim in light of the size of the claimant group. If, however, you are selected as a test case, you must be prepared to attend Court if requested. If you are asked to be a witness, we shall guide you through the process.
While this might sound daunting, the process would likely be straightforward. You would be treated respectfully by both the Court and the defendant, and your evidence would likely focus on whether or not you would have purchased the affected vehicle had you known about the defeat device.
The claim will be against the following companies:
VW owners are encouraged to join this action, not only because of financial motivations, but also to hold VW to account for their deliberate deceit and the damage they have caused to the environment.
We will strive to obtain the maximum recovery on your behalf for the lowest possible cost, and with the least amount of risk.
However, given that VW has not yet offered to ‘fix’ most of the affected vehicles, and because the consequences of the fix are not yet clear, it is not possible to advise definitively about the likely level of compensation. The amount of any damages that are awarded will ultimately be determined by the Court or else negotiated through settlement.
While US claimants received an average $8,000 before costs, damages payments in the UK are likely to be more modest. The US damages payments reflect a number of factors, including stricter regulations, active and aggressive government intervention, and the relative ease of bringing group compensation claims. Further, we note that the number of affected vehicles is lower, and that VW has admitted that the software constituted a ‘defeat device’ in that jurisdiction.
We expect that UK damages payments will be per vehicle rather than per person and so the more joint owners or previous owners the vehicle has had the lower the damages per owner for that car.
We believe that the Court will assess the difference between what you paid for your vehicle and the inherent value of what you actually received. We will argue that the price you paid reflected a range of matters including the vehicle’s reputation for being well-engineered and kind to the environment. We will argue that you received a vehicle that should never have been licenced for sale because it did not meet the required emissions standards. In addition, we will claim an amount for your inconvenience. If it can be shown that your car has depreciated in value or performance these factors will be relevant to an assessment of loss.
Claimants who bought their vehicles through finance provided by VW Financial Services will have an additional claim.
In addition to the above, we will make a claim for exemplary damages if we can show that VW deliberately fitted a defeat device to increase its profits. In the draft Generic Particulars of Claim, we make the following allegation:
Further and/or alternatively, the Claimants seek exemplary damages. One or more of the Defendants have acted in deliberate and cynical disregard of the Claimants’ rights. Further, their actions have been motivated by a desire to increase their profits, and were based on a calculation or assumption that the gains to be made from their wrongdoing exceeded the likely fines or compensation payable. The Claimants are unable to say which of the Defendants are guilty of this conduct prior to disclosure.
The Defendants knew, or must at least have strongly suspected, that the Vehicles contained unlawful defeat devices, that the Vehicles did not meet the Annex 1 limits, and that they did not comply with the Emissions Regulations, the Testing Regulations and the Framework Directive. The Defendants therefore knew, or must at least have strongly suspected, that the Vehicles emitted greater levels of NOx than was lawfully permitted, and greater levels than had been represented to the Claimants. Thus the Defendants knew, or must strongly have suspected, that the Vehicles were causing greater damage to human health and the environment than was permitted by UK and European law. Further, despite that knowledge, the Defendants designed, manufactured and supplied the Vehicles with a Defeat Device instead of investing in and relying upon legitimate research and development, and in doing so were motivated by a desire to increase their profits.
Further, the Defendants cynically sought to hide the existence of the Defeat Device from regulators, from the Secretary of State, and from their customers, including the Claimants.
While we do not know how much VW made as a consequence of the alleged deceit, this should become clear as documents are disclosed in the litigation.
This will depend on a number of factors including the overall loss, the number of clients, the amount of time the claim takes, the volume of documents disclosed, and the complexity of the expert evidence.
However, we currently estimate you will keep around 70% of the compensation that is ultimately awarded. The balance will for the costs of solicitors, barristers and experts, as well as the insurance premium, and the litigation funder’s fee.
Third Party Funding is where a third party (not otherwise connected or interested in the claim) agrees to finance all or part of the legal costs of a claim. In return, the Funder receives a fee payable from the proceeds recovered by the Group if the claim is successful. Third Party Funding is therefore a form of alternative investment which although has a high degree of risk, can be well rewarded if a claim is successful. Third Party Funding allows cases to proceed which otherwise would not be able to be run.
No. If the case is successful, you will receive monetary damages as compensation for any loss you have suffered due to VW’s actions.
The effect of the funding arrangements is that you will pay nothing unless the case is successful.
If we obtain compensation on your behalf, then you will pay a fee that reflects the financial risk that the Third Party Funders have taken in financing the litigation.
The relationship with the Third Party Funders is governed by the Litigation Funding Agreement which the Committee will execute on your behalf. While the Agreement is commercially sensitive it may be inspected at our offices.
Under the Litigation Funding Agreement, the Third Party Funders will pay any up-front insurance premiums, pay the disbursements associated with the case, pay the fees due to Slater and Gordon under their Conditional Fee Agreement and provide working capital support to make it possible for Harcus Sinclair UK Limited to sustain their DBA.
Provided that the compensation received is enough to give the Third Party Funders more than a return of three times what they have risked, together with the return of their capital, the overall fee that will be taken from your compensation is 30%. The cost of distributing the settlement fund will be in addition to that fee.
This arrangement is reflective of the risk being taken by the Third Party Funders in agreeing to fund the claim.
Yes. We would strongly urge you to continue to make your contractual payments. The fact that you are engaged in litigation with VW does not mean you are able to breach your current contractual obligations to VW and may result in any award of damages being reduced accordingly.
NOx is a pollutant. It is the generic term for the oxides of nitrogen: NO, N2O and NO2. NOx is the result of the nitrogen in the air reacting with the oxygen in the air during combustion that is needed for the oxidisation of the fuel to produce energy. NOx is also harmful to humans and the environment which is why its emissions are controlled and regulated.
NOx is a pollutant which has a negative impact on the environment in a number of forms. Some examples are as follows:
DEFRA believe that more than 23,000 people in the UK die prematurely every year because of NOx.
In the US, the Environmental Protection Agency has asserted that breathing air with a high concentration of NO2 can irritate airways and cause respiratory issues (coughing, wheezing or difficulty breathing). It has also reported that high levels of exposure to NO2 may aggravate respiratory conditions such as asthma and increase susceptibility to respiratory infections.
In the UK, the Department for Environment Food and Rural Affairs has claimed that exposure to ‘particulate matter’ from emissions has been estimated to reduce average life expectancy in the UK by six months. Defra estimates that the UK death rate is 4% higher due to NOx pollution, causing 23,500 extra deaths per year.
The level of NOx pollutants is estimated to cost UK public health services over £16 billion per year.
What being in the claim will mean for me
In order for this claim to be financially viable, it is essential we keep costs to a minimum. As the case progresses, we will keep the group updated by way of email updates. We will also update the content and FAQs on our website. If there is something you are not clear about and require a specific response to, you can submit a web query which will be answered within 48 hours.
We expect VW strongly to defend the claim. It is difficult to estimate the likely timeframe but it is anticipated that the litigation could take between 18 – 24 months to get to trial.
As the case progresses, we will keep the group updated by way of email updates. We will also update the content and FAQs on our website. If, however, there is something you are not clear about and require a specific response to, you can submit a web query. Rather than respond individually, we propose regularly to update the FAQs and to send them to the group as updates.
Any claimants involved in a Court case could be ordered to pay the defendants’ legal costs if they lose. This is a characteristic of the Court system in England and Wales. In order to protect claimants from that risk, we have obtained an indemnity from the Third Party Funder who are responsible for obtaining insurance. If the case is lost, it will be the Third Party Funder or their insurers who will pay the other side’s costs up to the level of the amount insured. It is our duty to minimise the risk to you as far as possible, and the funder’s indemnity and Insurance should mean that the risk will be negligible. Other risks are referred to in the Claim Summary document, which we have prepared and which is available to prospective claimants during the registration process.
There is a link to sign up to updates on the homepage of the registration website.
If you have only expressed an interest to join another group and there is no retainer in place, you are free to instruct whomsoever you please. If you have expressed an interest to join either Harcus Sinclair or Slater and Gordon’s group, you should complete the necessary sign up process on the registration website as it represents a claim being brought on behalf of both firms. If you have been formally retained as a client by another firm for this action, we unfortunately cannot accept your instructions. If you are unsure as to whether you have been formally retained by another firm, we recommend that you contact that firm to ascertain the position.
We suggest that you do not join unless you are willing to see the claim through to completion. We have designed the claim so that your risks are minimised. However if you do chose to leave the Group Action once it has commenced then you will be liable to pay a portion of our costs in proportion to the number of vehicles you are claiming for. For example if there are 20,000 vehicles, and you are claiming for one, then your liability for our costs will be 1/20,000th. You will also be responsible to cover VW’s costs to that point in the same proportion. Therefore leaving the Group Action is not advised as it will only mean incurring costs which may be avoided if you remain until the conclusion of the claim.
VW’s response to the claim and the proposed ‘fix’
When the scandal broke in September 2015, VW’s then Chief Executive said that he was ‘deeply sorry’ for the incident. They have since committed to recall and fix all affected vehicles by the end of 2017 but have offered no compensation to affected owners. We have seen documentation whereby VW admit that the affected vehicles did not comply with the necessary regulations. In public VW has denied that this is the case. We do not yet know how VW will defend the claim but we shall keep the claimant group updated as the case progresses.
VW has confirmed in correspondence that they in principal agree that if a large number of claims are issued and pursued against VW, it may be necessary for such claims to be managed by way of a GLO. As the claimant group is already large and is continuing to grow, we believe it is in VW’s best interest for a GLO to be made as it will allow them to more effectively manage the case put against them.
VW has done a very good job of repeatedly saying that it does not matter, as they have committed to fixing all of the affected vehicles at no cost to the owner. Our case is that this is not the point: customers have been misled, huge damage has been done to the environment in the meantime and there is no evidence to suggest that the fix is effective without negative repercussions to the affected vehicles. We strongly suspect that VW want to delay the hearing of this case until those people who bought their cars new have sold them. We also suspect that by delaying matters VW hope that the emissions scandal will be seen as old news and one which people have lost interest in. We do not believe this is acceptable and believe that VW should be held to account for their actions.
It is also particularly noteworthy that VW’s approach to the scandal has been inconsistent. We believe this is illustrative of a lack of transparency and accountability to their customers and again something they should be held to account for. By way of example, VW notified the Driver & Vehicle Standards Agency on the 1 October 2015 that the nitrogen emissions levels in the affected vehicles did not meet Euro 5 regulatory requirements. They have now, however, stated that ‘with the benefit of legal analysis’ this is no longer the case. A link to this document can be found here.
We are also sceptical as to the purpose of the recent advertising campaigns VW has been running that stress concepts such as ‘trust’. It is difficult to accept such campaigns as genuine in light of their recent behaviour. Again, we believe that before customers can be asked to ‘trust’ the brand again, VW should be held to account for their actions and their customers compensated for their behaviour.
VW are now carrying out a ‘fix’ to the 1.2 million affected cars. VW have not told us exactly what this fix consists of but the aim of it is to make sure the cars comply with the emissions levels when not in the test cycle (i.e. when being driven normally). 1.2 litre and 2.0 litre engines will need a software fix, but 1.6 litre engines will also need a mechanical fix. The fixes were due to be completed by the end of 2016; however, to date VW have fixed a little over 10% of the cars and so we expect the fixes to continue well into 2017 and beyond.
One of the key complaints is that nobody knows what the ‘fix’ entails. VW will not tell their customers what it involves. Shockingly, we have had reports of ‘fixes’ being carried out by VW garages unbeknownst to customers simply taking their affected vehicle in for a service.
Due to the lack of information VW have been willing to provide, it is difficult to ascertain what the result of the fix may be. We have spoken to experts in vehicle emissions and testing and suspect that, to some extent, VW will be able to 'remap' the vehicles' ECUs (electricity control units) so that published fuel economy and performance figures do not change noticeably. This doesn't tell the full story though, and we believe it is likely that in real world (not artificial, prescribed fuel economy tests, for example) driving, the performance of affected vehicles will, to some extent, be damaged.
There are anecdotal reports of vehicles becoming thirstier and slower (see the honest John Website, for example), and we have commissioned independent tests to try and reach a conclusion on this issue.
No. There is no legal obligation for you to have the ‘fix’ if you do not want to. VW have said the affected vehicles remain roadworthy in their current state and that they will not fail their MOT because of the NOx issue.
As we do not know precisely how the fix works, we cannot definitively say whether owners of affected vehicles ought to have their cars fixed or not. At this stage we do not think that having your car fixed will compromise your claim. The reason behind this is that, regardless of the effect of the fix, you will still (we believe) have overpaid for vehicle at the point of purchase and should be compensated accordingly.
You can be part of the Group Action against VW regardless of whether you have had or not had your affected vehicle ‘fixed’. You will still have overpaid for your vehicle at the point of purchase and have been should be compensated accordingly.
Yes. VW has come to a $15bn settlement with VW owners in the USA. This was arrived at following several class actions and considerable political and regulatory pressure.
VW say the situation in the UK is very different to the USA in that they can fix the cars in the UK whereas they can’t in the USA. VW are not inclined to make any offers of goodwill to UK owners nor are they offering to buy back affected vehicles. Our view is that this is mis-guided and VW’s approach has more to do with appeasing aggressive US regulators and warding off potential criminal prosecutions.