How can VW be held to account for the dieselgate scandal?

Julian – I will give you the biggest Scottish solicitor dealing with many 100,s of Scots VW car owners , I hope in this case Which ? will excuse any advertising as Julian asked me for this Thomsons solicitors read https://www.heraldscotland.com/news/15181197.Video___VW_faces___5_million_legal_claim_in_biggest_ever_Scots_class_action_over_emissions_scandal/ the Herald is a Scottish upmarket newspaper here is their website with all the contact details (freephone ) https://www.thompsons-scotland.co.uk/news/13-thompsons-press-releases/2525-vw-emission-claims remember Scottish law is different from English law. Best of luck !

Julian – Because the introduction of group legal actions in Scotland has not been finalised, there does not yet seem to be a lead solicitor appointed by the Court.

Slater & Gordon and Leigh Day are the lead solicitors appointed by the High Court to act for the owners of cars bought in England & Wales but other firms can also represent owners under the group legal action.

Thompsons [see above] seem to be representing around 250 clients. Several other Scottish law firms are also competing for the business and can be found on-line. Slater & Gordon have an Edinburgh office and can represent Scottish owners. Leigh Day do not have a Scottish office.

The correct jurisdiction is that covering the place where the car was bought. It is advisable to approach a law firm with experience in the law of the appropriate jurisdiction.

John-Thomsons do not have 250 clients they have over 800 and counting , they are also the MAIN solicitors in Scotland representing Scots on this issue . Next they started this action way back in -2015 I read Scottish newspapers . If you think different name a Scottish lawyer with more client on this issue ? Patrick Mc Guire of Thomsons is the lead lawyer . Again if you know different please let me know ? Its admitted that Thomsons are further ahead in the running than other lawyers in Scotland https://www.dailyrecord.co.uk/news/scottish-news/hundreds-scots-affected-emissions-scandal-9590122

Yes, sorry Duncan – my mistake. The Thompsons press release to which you provided a link said the firm represented 400 car owners. The article in The Herald said they represented over 800 with 400 claims with other solicitors. I don’t know where I got the figure of 250 from – I might have read it in an earlier article or document. Obviously the number has been growing strongly. I don’t know why you are getting shirty with me – it was an innocent error and it didn’t contradict any other number quoted in the Conversation.

I don’t dispute that Mr McGuire is the the leading lawyer in Scotland on this action but so far as I could tell the Court of Sessions has not yet appointed an official Lead Solicitor practice.

Sorry if I appear shirty John its not meant – I apologize .

In reply to your second point David all those registered with Slater Gordon will get compensation , likewise if another lawyer is used their registered clients will receive compensation . Those that aren’t registered would need to apply for compensation . This is applied so that any person not taking part in an action and not contributing to the class action in any way cant take advantage of those that have unless legislation comes about that states all those having financial injuries relating to the action can claim without financial input. If you sue any company and lose they have the legal right to have their costs covered at least . To back up my point here is an extract from a big US attorney QUOTE-The losing side does not ordinarily have to pay the winning side’s attorney’s fees, contrary to popularly held belief. In the United States, the general rule (called the American Rule) is that each party pays only their own attorney’s fees, regardless of whether they win or lose. This allows people to bring cases and lawsuits without the fear of incurring excessive costs if they lose the case. In contrast, in England and other countries, the losing side is often required to pay the other side’s attorney’s fees after losing a trial. IF somebody loses an action brought by them then that party could be hit with the bill and it could end up with bailiffs calling in this country. Read https://www.lawgazette.co.uk/practice/slater-and-gordon-plans-uk-closures-after-493m-losses/5053906.article

Well spotted Duncan.

Thanks Wavechange , while UK law in this regards looks the worse off compared to the US one thing must be taken into account , US attorneys in line with US law take a THIRD or more of the settlement , this is a big issue over there.

Legal protection insurance is one way we can deal with our potential claims. It is unlikely that an insurer will fund an action unless their is a good chance of winning. Perhaps that’s not a bad thing? I have never, though, had any action to pursue in this way.

As regards VW, the customers are only funding the action, it seems, if they win (35% of the compensation). It would, however, set a precedent for other affected owners if the action is successful so I would imagine, to forestall further legal action if VW lost, they might compensate others automatically. Is that a possibility?

Yes its possible malcolm as I have followed the whole process of the company dealing through the US government in providing forms to be filled in etc but you know the UK would HMG do the same as the US did ? There they applied pressure on the company to facilitate this action on behalf of US citizens . It requires a willingness on HMG,s part and as you know that hasn’t exactly been forthcoming . As I have said the company doesn’t rate the UK highly in terms of sales and don’t feel pressurized to comply . The news this week is that China has now surpassed the USA in terms of volume sales , on German television their exec. was a bit dismissive of this country .

Thanks for your reply, Duncan, from which I take it that an owner wanting compensation should join the action. If they don’t, they would have to take individual action against VW, since it is unlikely that legislation will be passed that requires compensation to be paid to those who have not applied for it.

Correct David I wish I could give you better news , in this country its up to the individual to join or not . This applies to many areas of English law in relation to suing and compensation, to me it favours the business world rather than the British citizen .

In cases of compensation I’d suggest it is a loss that is first determined when an action is proven, and this will differ from one individual to another. So if the claim involves extra fuel cost, that will depend upon mileage; if it is loss of value, that may depend upon age, condition, value of the particular vehicle; if expenses travelling to have a correction carried out, then distance and time involved.

On the other hand I imagine a class action will, if successful, decide a single amount for everyone involved (from which 35% is deducted).

So I don’t see this way of handling individual action as a deficiency in the law, nor favouring business, but ensuring appropriate compensation is awarded.

I am uncomfortable if the notion is not compensation (or not only), but a “penalty” payment . I believe, like fines, this sort of payment is one due to the state, whose job it is to exact penalties, not any individual’s.

Yes malcolm but as I pointed out HMG isn’t the US government who insisted that forms be filled in to decide individual compensation . Not so in this country, as it stands just now so your second paragraph is correct in applying to the UK. It certainly was a penalty plus compensation in the USA- penalty to the government -compensation to the US people.

As I’ve said before, i’m happy to see personal compensation awarded, plus compensation to the UK for any loss of VED and benefit in kind tax, plus a penalty for the transgression.

It’s all very well comparing the relief available through the courts in America and the UK but the two situations are not identical. If companies face higher payouts in the USA in the event of losing a class action that will find its way back into the prices of goods and vehicles, and we all know that it is impossible to make comparisons between the price of goods in America and the UK because the two markets are so different in scale, product characteristics, and consumer demand. The laws and legal systems are different too so that what might be a breach in one country might not regarded the same in the other. I am more interested to ensure that UK consumers are treated no worse than those in the rest of Europe but we never seem to get any information on that from Which?. Why is that?

For the same reason I get much info in the USA and zero here. John guess what country US law is based on —- British law . I have detracted info on UK secret services attacking and gathering info from a UK charity which investigates snooping on us as I am in contact with them my name will be on their data base . You think our authorities have the moral high ground ? laws are broken “legally ” depending on who you are. The basic principles of natural law apply equally that’s why so many British VW customers are so angry with the different treatment applied.

Emissions regulations in the USA are totally different from the EU’s and it is there; I believe, that the VW problem arose. Hence the penalty.

Thank you, Malcolm. We need to make sure that UK owners of VW cars understand that critical difference so they don’t harbour resentment at any perceived disparity of treatment.

I am not sure of the relevance of pointing out the origins of US laws. English common law and case law are shared up until American Independence, but from then on the USA has made all its own legislation in a federal and state context according to the constitutional structure and the separation of powers. American case law has also developed separately from then on. If they align it is a coincidence. Regulations concerning vehicle emissions have no foundations in the 18th century.

There are VW Group car owners here who have reported they are quite happy with their vehicles and the remedial work. Those who are not are free to pursue their claims.

I wonder why we have not seen the same demands for owners of Indesit/Whirlpool dryers whose lives were said to be directly at risk?

I think if any general action needs to be pursued – and it may be underway – it should be to recover any loss of VED and income tax revenue to the government together with a penalty for potential damage to health from excessive NOx emissions. The latter might be difficult to quantify.

I am all in favour of people being compensated [their choice – not compulsorily] if they have suffered actual loss or physical harm. But being deceived is not in either category. It is an outrage on society and society should have the benefit of any relief plus exact a penalty on the company’s directors, relevant senior managers, and shareholders [through devaluation of their stock by the reduction of profits and dividends]. Whether the German government has any liability would be an interesting question as well.

I’m not sure about who was deceived in practice. If the issue is NOx, this is not something an ordinary consumer would have considered when buying, as far as I know; the NOx figure is not advertised, is it? That doesn’t mean there has not been deceit; there clearly has. But it seems to me it was the regulatory authorities who approved the vehicle(s) for sale that were deceived, and they who should be exacting retribution.

If, however, the deceit was on CO₂ emissions (and thus mpg) then this would directly affect some consumers when they were making a choice of vehicle; the purpose of such figures is to allow comparisons to be made between vehicles on the same basis.

I expect that most people assume that products are manufactured according to current regulations and standards. Those who have bought cars that don’t comply have been deceived, in my opinion.

Quite right, Malcolm. This largely depends on how much time and effort we want put into grinding every issue down into fine dust and then identifying a person responsible for each grain. For instance, it could be argued that the regulatory authorities did not ensure an adequate method for detecting and preventing misuse of the testing process, but somewhere along the line, with audited quality assurance procedures presumably in place, we have to trust the honesty and integrity of major companies. VW itself was probably more deceived than any other body and has suffered massive costs and reputational damage. I have not kept closely in touch with this issue so I have not heard whether any internal disciplinary processes have led to any sanctions against personnel.

I agree with you, Wavechange. The question is, to what extent can, or should, we monetise deceit? In a consumer society there is an enormous amount of ‘deceit’ – but that doesn’t mean we have to take it for granted and put up with it. Appropriate regulations and consumer protection controls, exercised by society on behalf of individuals, are probably the best ways to mitigate it and deter further attempts.

JW – “VW itself was probably more deceived than any other body and has suffered massive costs and reputational damage. I have not kept closely in touch with this issue so I have not heard whether any internal disciplinary processes have led to any sanctions against personnel.”

I am rather shocked that you believe the original excuse from VW that the upper echelons of VW were unaware. However if you are not following the story then you are probably not aware of how it has moved on in the last year.

And yes people have been fired, resigned, and in the US jailed.
“A former Volkswagen executive has been sentenced to seven years in prison and a $400,000 (£298,778) fine, after admitting he helped the firm evade clean-air laws.
Oliver Schmidt, 48, is the second person to be imprisoned in the US over the diesel emissions scandal.”

Some criticise “business” as if they were the only perpetrators of deceit. Shrewsbury and Telford Hospital? Contaminated blood and the NHS?….. Seems to me this is down to people rather then organisations. Is covering up dangerous personal and institutional failings and mistakes, preventing “correction”, not in a similar or worse league?

I dispute your contention that there has been no actual loss to VW diesel owners. I have posted that around 4,000 people have reported to their respective consumer bodies that their cars are not as good as they were following the fix.

I am going to accept that they probably are more aware than us non-owners of the effects on their motoring and the very probable loss of sale or trade-in value they are now subject to.

Just to answer malcolm’s query I remind you that according to a VW executive the cheat allowed the cars to pass the EU regime also.

I believe the debate about deceit and evasiveness in State and LA run institutions suggests that we tolerate too much sneakiness in general, but the problem is possibly exacerbated when you realise that Business does it simply to make more money. Those in the NHS and other state-run operations are normally engaging in these peccadilloes either to meet targets or to cover their own backs. That is, in effect, what separates the state-run from the privately owned.

Now, it’s perfectly possible to argue deceit of any sort is wrong, but it’s also possible to argue deceit in the pursuit of personal wealth is far worse than in simply attempting to avoid getting a bad report.

Without knowing how numerous and important “some” are it is hard to judge scale. Most people are aghast at any cover-ups or double dealing where ever it is practised. If we as a nation wish to improve matters then we need a meaningfull whistleblowing environment so that bad behaviour is both deterred in the first place and brought to light earlier if someone embarks on it.

The conduct of the Banks pre-2008 in silly lending, the abuse of the leasehold system, corrupt solicitors padding claims, conveyancers in league with developers, …..
I am sure there were people wanting to blow the whistle on these matters but no safe body well-known.

The CQC stitched up some whistleblowers about care homes and are not that good with hospitals. Nice way to keep the lid on things.
theguardian.com/society/2014/nov/22/there-were-hundreds-of-us-crying-out-for-help-afterlife-of-whistleblower
theguardian.com/society/2016/dec/06/nhs-whistleblowers-gagged-blacklisted-cqc-care-quality-commission
minhalexander.com/2017/06/22/cqc-involved-in-a-whistleblowers-referral-to-the-disclosure-barring-service/

Patrick Taylor says: Today 14:21
Most people are aghast at any cover-ups or double dealing where ever it is practised.

Hmmm. I’d argue that many will appear incensed when they read accounts of it in the media, but that anger soon dissipates – either when the facts are fully revealed or when they realise that most people trying to save their skins have done the same. Who hasn’t told lies?

The media feasts on the sensational and has no interest in curing the problem. I agree that there are differences in culpability but a lot of time a system is rigged so as to ensure people need to cheat or cut corners.

Looking at why people are backed into bad choices normally suggest someone higheer up is pulling strings for their own benefit. The Zeebrugge ferry disaster created by bean counters shaving minutes being a case in point.
In October 1987, a coroner’s inquest jury into the capsizing returned verdicts of unlawful killing. Seven people involved at the company were charged with gross negligence manslaughter, and the operating company, P&O European Ferries (Dover) Ltd, was charged with corporate manslaughter, but the case collapsed after Justice Turner directed the jury to acquit the company and the five most senior individual defendants.[34] It did, however, set a precedent that corporate manslaughter is legally admissible in English courts. The disaster was one of a number that influenced thinking leading to the Public Interest Disclosure Act 1998.[35]

@dieseltaylor, Patrick. I have not disputed that VW owners have suffered loss (not sure who the comment was directed at) and I’ve aired my views on how some of that loss might be compensated.

I have pointed out before that the VW “cheat” was used to their advantage during the KBA’s execution of the NEDC test – a test regime designed by, and imposed on all manufacturers, by the EU in order to attain type approval. No question of that. I don’t know whether the cheat device also set out to give beneficial mpg and CO₂ results; I’ve lost track of that.

“deceit in the pursuit of personal wealth is far worse than in simply attempting to avoid getting a bad report.“. Two of the motives for deceit are for money (say in business), and for covering misdemeanours (say in public life). The problem I have with the latter in, for example the maternity unit at Shrewsbury and Telford, at Gosport Hospital, in the NHS blood problem is that they not only caused actual loss of life and severe damage to health at the time but, by covering up, preventing people speaking out, destroying evidence maybe, they prevented speedy remedial action being taken and cause significant further fatalities and severe health damage. I’d put that kind of selfish, irresponsible, cowardly behaviour way above a profit motive. I’d suggest it is criminal. Lives cannot be recovered from the actions of these organisations and the people involved; money can be recovered.

Patrick – I have neither said not implied that I believed “the original excuse from VW that the upper echelons of VW were unaware”. Indeed, I wrote previously today that society should “exact a penalty on the company’s directors, relevant senior managers, and shareholders [through devaluation of their stock by the reduction of profits and dividends]”. In a subsequent comment I wrote “I have not heard whether any internal disciplinary processes have led to any sanctions against personnel. It is perhaps shocking, and grossly remiss of me, that I have not been following this story with the attention to detail that is expected of me by some people, but I can’t be everywhere I am afraid. It seems as though a handful of staff [other than those subject to criminal proceedings] have either jumped ship when close to shore or been made to walk the plank. I would have expected a major purge of the organisation and the closure and reformation of the entire testing unit would have been carried out. Perhaps it was and I missed it again.

I don’t think I have contended that there has been no actual loss to VW owners; some of them clearly have experienced a quantifiable loss and I have averred that they should have the right to be compensated for it if they wish. I just happen to think that very few losses will ever be crystallised, that in the overall scheme of things they are not as serious as is being made out, and that to some extent in a lifetime’s car ownership with possible ten or more vehicles we just have to accept the rub of the green. That’s my philosophy but I would not wish to impose it on anyone else. As Malcolm stated earlier today, the Indesit/Whirlpool case is much more deserving of active compensation because it put people’s lives at direct risk, meant serious inconvenience to owners, caused them direct additional expense, the rectification process was mishandled and protracted, and the public authorities [Peterborough Trading Standards et al] were delinquent and misdirected themselves [eventually having to be pulled into line by an application for judicial review by a private consumers’ organisation].

The management analytical concept of the “Thermocline of Truth” might come into play with huge organisations like VW. The upper echelons are blithely unaware of what is going on at production level [or pretend they are]. Many perpetrators might also be exonerated in honour of the popular Teutonic concept of “only obeying orders”, although I thought that had had its come-uppance seventy years ago..

Malcolm: “The problem I have with…the NHS blood problem (et al) is that they not only caused actual loss of life and severe damage to health at the time but, by covering up… they prevented speedy remedial action being taken… I’d put that kind of selfish, irresponsible, cowardly behaviour way above a profit motive. I’d suggest it is criminal.”

But it is. That wasn’t the point I was making. John’s touched on it with his comment about the “Thermocline of Truth”, but the real point is that it is culturally embedded for many businesses to lie for profit; in the case of the NHS issue that was a worrying breakdown in management culture and responsibility, and one that we see in all kinds of institutions, everywhere but hopefully rarely. It is – or should be – an aberration, whereas lying and deceit in business is almost a prerequisite for promotion. Morals and business are not automatically linked, whereas in the NHS they are – and should be inextricable.

There are, and have been, many examples of deceit/malpractice/cover up in public services, some of which have had severe or catastrophic consequences. The point I was making was that this kind of attitude is, I believe, down to the people involved. That is where such problems start. And that is not limited to one sector. Personal advancement and protecting one’s position is probably a key driver for many.

I worked in industry and those businesses I was part of behaved well. Morals and the NHS are clearly not always linked as many of the scandals have shown over the years. I sense it is at the administration level that these problems start.

Malcolm are you talking about the big coverup by HMG that gave 4000 British hemophiliacs – HIV -etc by using American blood supplied from drug addicts/ prisoners /homeless etc ? This was back in the news as the coverup was outrageous in terms of the length it went to and the amount offered/given was derisory as it was a death sentence to them and they had to sign a waver of any future action being taken . As I said long ago in the USA you are paid for blood. I am lucky I had a blood transfusion in the early 70,s after a major stomach op.

There’s a public inquiry just started after 30 odd years. How timely?Many of the victims are dead.

I don’t deny that there have been (and possibly are) examples of deceit and lying in public services. The point which I’m making is that in business there is no moral imperative unless and until a conscious decision is made to create one. The NHS has as its guiding principle a moral imperative and while individuals can and do ignore that it remains the very reason why, when something does happen, they are held to a higher standard than businesses. The word ‘pilloried’ is not inappropriate.

You might well ‘sense’ where the problems start but in fact I know of incidents which have been instigated elsewhere.

I’m not defending NHS miscreants; far from it, although I could point to the incredibly intense levels of public scrutiny under which Health Board and Hospital administrators are expected to work while resources are continually whittled away, the targets that are set by those who lie for a living and the intense media scrutiny when things go wrong as being ameliorating factors, but in the case of business we don’t hear about the issues, since businesses worry about confidence, about salaries and about employment, and it’s only when it emerges that a car company has been routinely lying and deceiving about emissions that can seriously impact the health of children in cities since 1973 that there’s any sort of public reaction, because that’s the first time we get to find out what’s been happening.

It’s a useful benchmark. There are probably more of the affected VW’s in Germany than in other EU states but the number of affected cars in State X over the number in Germany would give a working percentage on which to base the calculation of a penalty.

” The mpg figure as I understand this repair will go down and therefore cost the driver more money and a poorer performance. It is not clear to me what disadvantage the driver/owner has suffered.”

I think your first sentence quoted illustrates the disadvantage your second sentence wonders about.

I think an analogy of buying a gold ring of 22 carat and then finding later it is 18carat. It looks the same and you have suffered no damage so would you be happy not to be recompensed for the deceit?

The NI, and Scotland, right to join cases are dealt with in by several comments in the thread and actually at the English solicitors site if you read far enough..

Perhaps this might persuade you that quantifiable losses will accrue if the car is driven. There is cost of petrol and calling more frequently at a fuel station. Many diesels are bought for high mileage driving.

” The owner of a tested Skoda Yeti thinks its driveability has worsened after the measure.
“The engine feels weaker at the rpms I usually run, which is below 2000. It has deteriorated too much for me to accept”, says the owner.
He has also kept a driving journal and noted an increase in fuel consumption after the update. For the first 19,000 kilometres, the average fuel consumption was 46 miles to the gallon, but after the update it only does 40 miles per gallon.”

teknikensvarld.se/dieselgate-volkswagen-cars-loses-power-after-fix-456111/