High Court Lets 5,000 Late Dieselgate Claims Continue, and Orders a Share of the Costs

The High Court has refused to strike out claims brought by about 5,000 Dieselgate claimants whose solicitors served the claim form after the cut-off in a group litigation order. Mr Justice Constable stayed the claims while the main action continues, gave the claimants 21 days to serve particulars of claim, and ordered them to pay their share of an adverse costs bill of nearly 1 million pounds.

The claimants, represented by the Liverpool firm Bingham Long, had applied earlier this year to join the Peugeot, Citroen and DS claim inside the Pan-NOx emissions litigation. The claim form was issued in time. It was not served before the deadline in the group litigation order made in January 2024, though it was served inside the four months the Civil Procedure Rules normally allow. In a group action, the order's date is the one that counts.

Why the claims were outside the group, and still alive

Senior Master Cook held in June that letting the claimants join now would prejudice "the orderly conduct of proceedings". He did not decide what should happen next. The defendants asked for the claims to be struck out. Constable J had to choose between ending them and parking them.

He said the Bingham Long claimants "sit firmly outside" the Peugeot, Citroen and DS group litigation order, and that they were in breach of the obligation to serve particulars of claim. He also decided that an immediate strike-out would go further than the failure justified. "The fact that the BL claimants have brought themselves to this position through their own failures weighs heavily against them," he said. "Their conduct justifies making any further opportunity both short and final. It does not, in my judgment, make it proportionate to dispense with that opportunity altogether."

Who pays for a case that has already gone badly

The liability trial in the Peugeot, Citroen and DS litigation went largely for the defendants. The court then ordered the claimants in that group to make an interim costs payment of 23 million pounds. Pogust Goodhead, one of the lead solicitors, has said the Bingham Long cohort's portion is about 972,000 pounds, because those claimants are around 5 per cent of the total.

Constable J accepted that the costs-sharing clauses of the group litigation order do not, on their face, bind people who never got inside it. He looked at what had actually happened. The lead solicitors and the rest of the claimant group had proceeded on the basis that the Bingham Long claimants would share the costs consequences. Those claimants had already made what he called substantial contributions to common costs and to work done for the wider group.

"It would be artificial to treat the BL claimants as complete strangers to the costs consequences of the proceedings," he said. They may later ask for the stay to be lifted so they can use the work already done, and the work still to be done, inside the group claim. Letting them keep that benefit, while the other claimants alone carried the adverse costs, "would produce a result which is neither fair nor consistent with the overriding objective."

What claimants should take from a 21-day order

For the 5,000 people in this cohort, the judgment is a reprieve with a clock. Particulars of claim have to be served within 21 days. Miss that, and the claims are struck out. Serve them, and the claims sit on a stay, with liberty to apply, until the court decides that lifting the stay would not disrupt the group litigation. Constable J said it is neither necessary nor possible, today, to name the moment when that application would be appropriate.

For anyone else in the Pan-NOx litigation, the point is about deadlines and about costs. A claim form that is valid under the general rules can still be late under a group litigation order. A cohort that helps fund the common work can be asked to fund the common defeat. The July liability ruling did not end every emissions claim in the High Court. It did fix a costs number, 23 million pounds on an interim basis, and Friday's ruling spreads a slice of it to people who were never formally on the order.

Dieselgate has been in the English courts for years, in slices: Volkswagen first, then other manufacturers, then arguments about who served what, and when. This judgment is one of the procedural ones. It will not tell a driver whether their car had a defeat device. It will tell their solicitors that the group order's cut-off was real, that the court would rather stay a claim than kill it on the first asking, and that the bill for the trial already fought still has their name on a share of it.