Lawyers for the 85,000 motorists bringing a class action in the UK against VW for its role in Dieselgate have questioned whether the technical fix introduced in 2016 can be classified as a second defeat device, in a pre-trial hearing last week.
Slater and Gordon, who are leading a consortium of lawyers against VW, represented by Freshfields, raised the point as the Dieselgate trial heads towards an important two-week hearing at the High Court in December, four years after the class action was first raised.
That trial will be critical to deciding in UK law whether VW fitted a defeat device to the EA189 diesel engine, which powers 1.2m affected VW, Audi, Seat and Skoda models – the first stage of a legal process that could ultimately finish with VW paying out tens of millions of pounds in compensation to owners in 2022.
“We have asked VW lots of questions to clarify exactly what the technical fix is doing,” says Gareth Pope, head of group litigation at Slater and Gordon. For its part, VW’s lawyers say the technical fix was completed to standards set by Germany’s automotive technical agency, the KBA, equivalent to the UK’s VCA, and re-engineered the EA189 diesel to the emissions standards it should have had under EU5 regulations.
Slater and Gordon is questioning why the technical fix is operating over an ambient temperature range or ‘thermal window’ of 15 deg C to 33 deg C, and below 1000m altitude, suggesting that re-engineered EA189 engines will emit higher levels of pollutants in real-world use outside these conditions.
“This information has long been in the public domain and has received media coverage since at least April 2016,” VW told Autocar in a statement. Autocar also understands that VW rejects any suggestion that a ‘thermal window’ can be classified as a defeat device.
And given that the EA189 has been re-engineered to the EU5 standard that allows a ‘thermal window’, it seems unlikely that the fix is a second defeat device.
However, this detail is significant because it forms part of Slater and Gordon’s case, which must cross three hurdles of proof to be successful, the first being to prove in UK law ‘deceit’ - that VW deceived buyers by selling cars with defeat devices.
VW recently settled a class action out of court in Australia affecting around 100,000 cars with damages valued at between Aus$89m (£46.6m) and Aus$130m (£68.2m), equivalent to about $Aus1000 (£524) per owner. Although the Australian court case has no legal bearing in the UK, it suggests VW will find it difficult to win the defeat device legal action in December, but also that damages ultimately will be limited.