diligence in commercial actions. That was supportive of the contention that
RCS26A.21(b)(iv) and (v) were intended to serve a different, narrower purpose than the
commission and diligence procedure. Rule 26A.2 disapplied certain rules to group
proceedings, but not Chapter 35 of the RCS, which concerned the recovery of evidence by
way of commission and diligence (including the confidential envelope procedure). If Rules
26A.21(b)(iv) and (v) were intended to introduce a new document recovery procedure for
group proceedings, then one might expect use of commission and diligence in such
proceedings to be precluded. That was not the case. The scope of the court's power to make
orders in terms of Rules 26A.21(b)(iv) and (v) could further be discerned by the restriction of
the exercise of those powers to the preliminary hearing. A key purpose of that hearing was
to assess what further specification required to be made to parties' cases, which should be
well-defined prior to the action calling for a case management hearing. Chapter 26A did not
import a period of disclosure or discovery into Scottish procedure.
[28]
The nature of the documents sought by the representative party was, in general
terms, highly commercially and competitively sensitive to the defenders. While use of the
18
confidential envelope procedure was not excluded by Chapter 26A, it was open to the Court
under the commission and diligence process to appoint a commissioner to consider
questions of confidentiality in the first instance. That might be particularly appropriate in
circumstances where, as here, there was the real possibility that the approval of some or all
of the calls sought by the representative party would result in the production of a high
volume of confidential material. In such circumstances, the court should consider the
representative party's request for documents by reference to his secondary motion for
commission and diligence. Even if the court was minded to consider the application for
documents in terms of Chapter 26A, it nonetheless ought to be determined by reference to
the general principles of document recovery which had been well-established in relation to
commission and diligence.
[29]
In that context, it was generally accepted that commission and diligence was
appropriate only where there was a basis to believe that the documents sought existed, were
in the hands of the haver, and could be produced: National Exchange Co v Drew
(1858) 20 D 837, affd. (1860) 22 D (HL) 9. Furthermore, each call in a specification of documents
required to have a basis in the pleadings. Document recovery was permitted to facilitate
further specification of a party's pleaded case: Civil Service Building Society v MacDougall
1988 SC 58 at 61 and 62, 1988 SLT 687 at 689. Calls which were unsupported by averments
on record, or which were supported only by vague averments, ought to be refused on the
basis that they amounted to a fishing diligence. The court should closely scrutinise any
suggestion by the representative party that the purpose of a given call was to make more
specific his existing averments, as often "such an excuse is... used as merely a cloak for a
fishing diligence": Macrae v British Transport Commission 1957 SC 195, per Lord President
Clyde at 200, 1957 SLT (Notes) 30. In considering whether to grant a specification of
19
documents in whole or in part, the expense to the havers of complying with the court's
interlocutor was a relevant consideration: Somervell v. Somervell (1900) 8 SLT 112, per Lord
Stormonth Darling at 113 114.
[30]
All of that having been advanced by way of written submission, when it came to the
oral hearing the defenders nonetheless recognised the need for progress and that against the
background of the approach taken in Batchelor, an order for recovery was to some extent
inevitable. They accordingly offered no oral argument against an order being pronounced
in terms of paragraphs 1 to 5 of the revised list, subject to the minor and uncontroversial
revisals already noted. They did not, however, formally abandon any of the general or
particular objections which they had previously made in writing.
[31]
The first paragraph of the representative party's list of documents (relating to
Certificates of Conformity) was and remained unopposed.
[32]
The lengthy position taken in writing in relation to the second paragraph, concerning
vehicle emissions control systems and devices and NOx emissions levels, was that the
representative party's framing of the paragraph was not properly based in his existing
pleadings and was, in various ways, so imprecise that it would in practical terms be
impossible for the defenders to comply with an order in terms thereof. Many documents
falling within the paragraph would be confidential. None of these points was ultimately
pressed at the oral hearing as continuing to represent a bar to the grant of an order in terms
of the paragraph. The defenders' expressed concern that emissions testing was usually
conducted in respect of only one representative vehicle from a given line was dealt with by
the concession from the representative party already noted, which the defenders were
content to accept.
20
[33]
In relation to the third paragraph of the representative party's list of documents,
relating to Type-Approval authorities, the defenders had submitted in writing that much of
the paragraph had no basis in his pleadings, which were especially as they related to
allegations of fraud inspecific to the point of irrelevance. Some of the documents sought
were confidential. Again, none of these objections was ultimately pressed at the oral hearing
as representing a bar to the grant of an order in terms of the paragraph.
[34]
Turning to the fourth paragraph of the list of documents, concerning regulatory
investigations, recalls and software updates, it had again been submitted in writing that
much of the paragraph was not supported by the existing state of the representative party's
pleadings, which in relevant regards were vague and self-contradictory. However, no oral
argument against the grant of an order in terms of this paragraph was offered at the hearing.
[35]
In relation to the fifth paragraph of the list of documents sought, dealing with
software updates and communications with customers, the defenders had submitted in
writing that the information sought ought already to be in the hands of group members and
it was disproportionate for the defenders to have to produce it again. They did not insist on
this argument at the oral hearing.
[36]
Opposition was maintained at the hearing to the grant of orders in terms of
paragraphs 6 and 7 of the document list, dealing with technology suppression cartel
decisions by the European Commission and the Korea Fair Trade Commission respectively.
Those calls sought an exceedingly high volume of highly commercially sensitive information
and had no basis in the pleadings. No claim was made by the representative party that any
relative breach of competition law would sound in damages for the group members. The
European Commission's press release in relation to its decision, dated 8 July 2021, was clear
that its findings related to an arrangement not to maximise emissions suppression to the
21
greatest possible extent, rather than to fail to meet applicable legal standards, and stated in
terms that
"[t]his cartel investigation is separate and distinct from other investigations,
including those by public prosecutors and other authorities into car manufacturers
and the use of illegal defeat devices to cheat regulatory testing. There are no
indications that the parties coordinated the use of illegal defeat devices to cheat
regulatory testing".
The defenders agreed with that statement. The Korean Commission's decision appeared to
relate to the same subject-matter as that of the European Commission. Any relevance which
the documents described in these paragraphs had to the representative party's pleaded case
was at best collateral. He had already had access to the lengthy and detailed publicly
available versions of the decisions in question. Much of the material which would be caught
by the paragraphs was highly commercially confidential, as witnessed by the fact that both
the European and Korean commissions had only made available redacted versions of their
respective decisions to the general public. Reference was also made in this connection to the
supportive terms of a letter from the European Commission to the claimants' solicitors in
Cavallari dated 22 June 2023.
[37]
Some oral argument was also offered against the grant of an order in terms of
paragraph 8 of the list of documents, seeking the first defender's written response to the
order of the Amsterdam District Court of 13 November 2024. That matter was not linked to
the representative party's case as stated, and in any event, in accordance with how
proceedings before the Amsterdam court had developed, those defenders had not in fact
lodged any written response pursuant to the court's order and it would accordingly be
impossible for them to comply with this order now sought.
[38]
Turning to the question of the application for disclosure of the identity of witnesses,
the paragraphs of the relative list were notably wide-ranging and unfocused. They had the
22
potential to cover a large number of areas within the first and second defenders' businesses
and an exceptionally large number of people. What the defenders had or had not done was
a matter of objective technical fact capable of being determined by an analysis of the
documents to which the representative party sought access.
[39]
RCS26A.21(b)(iv) allowed the court to order disclosure of the identity of witnesses,
but questions arose about the intended and appropriate scope of the provision. The scheme
of Rule 26A.21 indicated that the various orders in its subparagraph (b) were intended to
serve the purpose referred to in subparagraph (a), namely the further specification of the
summons or of the defences. That reflected the scheme of Rule 47.11 for commercial actions.
On the question of what was truly required to provide further specification, pleadings in
Chapter 26A cases were intended to be abbreviated. The focus of the preliminary hearing
ought to be on litigating the cause in the most efficient way possible. Further, the Rule was
concerned with something much more focused than what was proposed here. That was
implicit in the wording of RCS26.21(b)(iv). In particular, the use of the word "witnesses"
was suggestive of a focused approach, with the focus in question being upon those
individuals thought necessary for the articulation and proof of the parties' cases rather than
something that was significantly broader and was not meaningfully defined.
[40]
A number of fundamental principles supported the defenders' suggested approach
to Rule 26.21(b)(iv). The function of adversarial litigation was not the conducting of a
general investigation into the whole circumstances underlying a case. Consequent on that,
parties were required to conduct litigation with due economy. There was no system of pre-
proof deposition in Scottish procedure. Rule 26.21(b)(iv) should be construed consistently
with the principles applicable to commission and diligence. Therefore, there ought to be a
basis in the pleadings for each call, and the court ought not to permit what was in effect a
23
fishing exercise. Serious allegations, including fraud, were made against corporate bodies.
It was proposed to obtain the names of natural persons who were in some unexplained way
part of the processes said to be tainted by fraud. The court should be astute to ensure that
this was not simply an attempt to gain support for a speculative case made by the
representative party.
[41]
The defenders were not aware of an order of the magnitude sought ever having been
pronounced (either under the Rule under consideration or the commercial court
equivalent) or of any authority addressing such an application. Authorities involving
recourse to section 1(1A) of the Administration of Justice (Scotland) Act 1972 for the purpose
of identifying witnesses were few in number. It was for the party seeking a section
1(1A) order to show why it was in the interests of justice that it should be granted. Thus, it
was necessary for the applicant to set out the purpose of the information sought; why it was
required now; and what attempts had been made to obtain it without recourse to the court.
If the applicant did not do these things, that ought to be an end of the matter. If a basis for
the order was set out, that had to be weighed against any countervailing circumstances. The
impact on the defenders and on the witnesses themselves would be one obvious
consideration. Overall, the court's decision should be taken in light of the policy within the
scheme of the Rules of Court for disclosure of witnesses. Reference was made to Mooney v
City of Glasgow District Council 1989 SLT 863 at 865L-866B; Boyce v Cape Contracts Ltd 1998
SLT 889 at 891L; and to Moffat v News Group Newspapers Ltd 1999 SC 664 at 668I to 669A, 2000
SCLR 346 at 350A - B.
[42]
The court should further have regard to the GDPR and to Article 8 of the European
Convention on Human Rights. In terms of the GDPR and the obligations owed by them as
employers, the defenders did not have the consent of their employees or any third party to
24
provide details of their names. As to Article 8, there could be no doubt that it was engaged
in the situation of an application for an order requiring an employer to disclose the identities
of its employees: F v Scottish Ministers 2016 SLT 359, 2016 SCLR 694 at [29] [31]. There
might be a question as to whether the defenders could properly assert the Article 8 rights of
their employees or any affected third party, but in any event the court would nevertheless
have a duty to consider the point, and in the particular context of a case in which serious
allegations including fraud were made, the engagement of Article 8 rights was self-evident.
It was for the representative party to demonstrate in relation to each individual that
disclosure of their name was necessary and proportionate.
[43]
In their supplementary oral submissions on Article 8, the defenders accepted that F v
Scottish Ministers, concerning as it did confidential and sensitive medical information, was
not particularly helpful in relation to the issue which arose in the present case. Rather, they
drew attention to Axel Springer AG v Germany [2012] EMLR 15, (2012) 55 EHRR 6 at
[83],where the ECtHR noted that the right to protection of reputation was a right protected
by Article 8 as part of the right to respect for private life, that the concept of "private life"
was a broad term not susceptible to exhaustive definition, which covered the physical and
psychological integrity of a person and could therefore embrace multiple aspects of a
person's identity, such as gender identification and sexual orientation, a name or elements
relating to a person's right to their image, and personal information which individuals could
legitimately expect should not be published without their consent. The Court further
observed, however, that in order for Article 8 to come into play an attack on a person's
reputation had to attain a certain level of seriousness in a manner causing prejudice to
personal enjoyment of the right to respect for private life, and that Article 8 could not be
relied on in order to complain of a loss of reputation which was the foreseeable consequence
25
of one's own actions such as, for example, the commission of a criminal offence. In LB v
Hungary (2023) 77 EHRR 1, the Court had reiterated those observations, adding at [104] that
data such as an applicant's name and home address, processed and published by a tax
authority in connection with the fact that he had failed to fulfil his tax payment obligations,
clearly concerned information about his private life, and that the public character of the data
processed did not exclude it from the guarantees for the protection of the right to private life
under Article 8. Reference was also made to Sõro v Estonia (App. 22588/08), 3 September
2015 at [56], and (in further written submissions provided after the oral hearing) to Sidabras v
Lithuania (2006) 42 EHRR 6 at [49] and to Gillberg v Sweden 34 BHRC 247 at [67]. Interference
with the prospective witnesses' Article 8 rights in the present case would not be "in
accordance with the law" given the novelty of the RCS26A provisions concerning witness
identity disclosure and was not necessary for the service of any legitimate aim recognised by
Article 8(2).
[44]
As to practicalities, the defenders operated in around 40 countries, with around
166,000 employees, selling around 2.5 million cars per year. The Board of Management
comprised a number of separate divisions. The research and development division was
responsible for development of passenger cars and was split into a number of different
directorates, including the Powertrain directorate, which was responsible for diesel engine
development. Hierarchically beneath the directorates, there were work centres,
departments, teams and, finally, specialists who were involved with actual functionality.
The time period in relation to which disclosure was sought ran approximately from 1
September 2009 to September 2019. Any order to identify the individuals involved in the
various processes would require to look at a large number of sections of the defenders'
businesses over a considerable number of years. A very large number of employees and
26
third-party suppliers would have been responsible for the various steps. Many of these
individuals would no longer be employed by the defenders, and no archive of who had
worked on which projects had been kept. The scale of responding to the order sought could
not be overstated. The wording used by the representative party was ambiguous at best, for
example the request for the identities of those "ultimately responsible" for various matters,
which might refer to a number of distinct functions carried out by employees or third-party
contractors.
[45]
The first and third paragraphs of the list of persons whose identities were looked for
covered a very large number of people spanning a number of departments and external
organisations over a significant period of time. The representative party was plainly seeking
to marry up individuals to the averments of fraud he had made. That was a profoundly
serious step from the perspective of those individuals, and to proceed in such an unfocused
way came nowhere near meeting the requirement to demonstrate necessity and
proportionality in relation to the order sought.
[46]
Paragraph 2 of the relative list was concerned with employees or third parties upon
whose interpretation of certain parts of the Emissions Regulations the design of "the affected
engine types' ECS relevant to the control of NOx emissions was based." That was an overly
broad call, with nothing in the pleadings that would cover it. The defenders were not aware
of anyone who would fall within the description set out.
[47]
Paragraph 4 of the list was concerned with the "application package" including the
"information folder" and "information package". Only the last of those terms appeared in
the representative party's pleadings. The paragraph appeared to seek the identities of the
signatories and also those who contributed to those items. That could be an exceptionally
large number of people.
27
[48]
Paragraph 5 was a variation on the previous two paragraphs and was subject to the
same criticisms. The drafting was notably vague and broad. Paragraph 6 sought the
identity of those who were involved in the design of software changes. It was hopelessly
wide and inspecific, and was likely to involve very many people.
[49]
Paragraph 7 sought the disclosure of the identities of persons subject to criminal
proceedings in Germany. It raised a most serious matter from the perspective of the
individuals concerned, and their rights required to be considered. The relevant names had
not been disclosed in any civil proceedings or elsewhere. The decision itself was not issued
in a public hearing. German constitutional and labour law and the duty of care owed to
employees would preclude disclosure by the defenders of their names.
Decision
Documents
[50]
The powers of the court under RCS26A.21(2)(b)(iv) are expressly capable of being
exercised in respect of requests for documents described generally by reference to their
nature or contents. No more specific identification of the documents requested is required.
If any documents produced in obedience to an order made in terms of RCS26.21 are
produced subject to a claim of confidentiality, an examination of such documents, whether
by the court or a commissioner appointed by it (but not by the producing party), may take
place and any appropriate excerpting exercise can be carried out. The fact that the powers in
question are conferred on the court at the preliminary hearing indicates the desirability of
early appropriate disclosure and does not imply that similar powers cannot be exercised at a
later stage; RCS26A.27 makes that tolerably clear.
28
[51]
The powers in RCS26A.21 which are mirrored in chapters 47 and 55 of the Rules of
the Court of Session ought to have diminished the use of specifications for commission and
diligence in the forms of procedure governed by those chapters, where the powers in
question are grossly underused, and it is to be hoped that in future greater resort will be had
to them than has heretofore been the case. Their previous underuse in those contexts in no
way implies that commission and diligence ought to be the default mode of recovering
documents, either in those forms of procedure or in group proceedings such as are presently
in issue. Commission and diligence remains available as an alternative means of document
recovery in all circumstances, and may be preferable in certain instances, for example where
the documents sought to be recovered are not parties to the cause in question.
[52]
Beyond those additional matters, the defenders' submissions may be dealt with by
reference to my remarks in Batchelor.
[53]
No active opposition was ultimately maintained to the grant of an order under
RCS26A.21(2)(b)(iv) or (v) in terms of paragraphs 1 to 5 of the representative party's list of
documents, subject to the minor adjustments to paragraphs 2 and 3 already described, and
such an order will be made. As was done in Batchelor, the defenders will be ordained to
lodge a brief note setting out the progress made by them in searching for and producing the
relevant documents on a rolling 28-day cycle thereafter. Either the court or the
representative party may, at any time during the process, and even though there remain
repositories still to be searched by the defenders for responsive documents, pronounce
themselves satisfied with what has been produced to that point, in which case the
obligations incumbent on the defenders in terms of the interlocutor to be pronounced will
cease.
29
[54]
The remaining orders for document recovery sought by the representative party will
be refused. It is clear from the material presented to me that the enquiries and decisions
made by the European Commission and the Korea Fair Trade Commission and referred to in
paragraphs 6 and 7 of the list of desired documents respectively concerned a collusive
arrangement, contrary to applicable competition law, to fail to maximise the potential
reduction of diesel engine emissions, rather than to use defeat devices to give the false
impression of compliance with existing legal requirements. Since the former matter forms
no element of the representative party's case, and is not a natural development of that case
as it currently exists, the recovery of the material sought by those paragraphs could not
materially assist in the statement or refinement of any issue properly falling within the scope
of the current proceedings, and no order for such recovery will, accordingly, be made.
[55]
Dealing with the material sought by paragraph 8 of the list of desired documents,
what the Amsterdam District Court requires the defenders to produce to it is clearly a matter
for that court to decide according to its own rules and principles governing document
production and recovery. The same can be said for relative orders of this court. The notion
that one court can or should simply ride on the coattails of the other in this context, without
reference to its own applicable rules and principles, is difficult to reconcile with the principle
that questions of the grant or refusal of orders concerning document recovery are
exclusively for the lex fori to determine. When one adds to that consideration the fact that
this court regards documents produced in consequence of its own orders as under its control
and subject to its directions Iomega Corp v Myrica (UK) Ltd (No. 2) 1998 SC 636, 1999 SLT
796 the idea that it should seek to gather the fruits of the foreign order without any
reference to the will of that court on the matter can be seen to be inconsistent with any
30
coherent conception of international judicial comity. The use of any material recovered by
order of the Amsterdam court in other fora is a matter for that court to determine.
Witness identity disclosure
[56]
I consider that the defenders have had sufficient notice of the content of this element
of the representative party's motion to enable it to be fairly dealt with at this point.
[57]
The court's power to compel the identification of witnesses, like the other powers
conferred by RCS26A.21, falls to be exercised with a view to securing the efficient and
expeditious processing and disposal of the group proceedings. The considerations already
set out in relation to orders for document recovery (in short, the directness or otherwise of
the bearing of the possible fruits of the order on the matters properly in dispute, the
availability by other means of the essence of the information sought, and the proportionality
of the order desired) will equally inform the exercise of the court's powers in this respect. It
ought to be borne in mind that in the context of group proceedings involving the alleged
commission of mass delicts, where the actions complained of literally and metaphorically
occurred at some distance in time and place from the loss said to have been suffered by the
group members, early disclosure of the identity of witnesses may (at least in many
cases) provide the key to efficient progress.
[58]
I reject any contention that the reference to witnesses in RCS26A.21(2)(b)(iv) is to
persons actually likely to be called to give evidence at proof, as opposed to persons who
may potentially be a source of material reasonably necessary for the development and
establishment of the representative party's case. The former construction would in effect
deprive the facility of witness identification orders of much of its plainly intended force.
31
[59]
Although group proceedings remain adversarial in nature, the defenders'
submissions based on that consideration fail to recognise how the concept has evolved in
modern litigation so as to entail and require a degree of cooperation between parties, and
amongst parties and the court, so as to enable each party adversarial to present its case for
adjudication to best advantage. The court's ability to compel such cooperation if it is not
willingly to be given in no respect transforms its role into an inquisitorial one.
[60]
It is difficult to draw much useful guidance from the caselaw concerning the exercise
of the court's general power to order witness identification under section 1(1A) of the
Administration of Justice (Scotland) Act 1972. Those decisions merely establish the entirely
unstartling and somewhat uninformative propositions that it is for the party seeking such an
order to justify it (as in any case where the court is being asked to exercise a discretionary
power), that the court's discretion falls to be deployed in light of the circumstances of the
particular case (again, how could it be otherwise?), and that the governing principle is what
the interests of justice require in those circumstances (a proposition expressed at a higher
and thus less practically useful level than the principles identified in Batchelor and already
noted). The requirements of Practice Note 8/1994 (as now amended by Practice Note 1/21),
requiring a party to disclose the identity of its own witnesses at least 28 days prior to a proof
diet in forms of procedure which do not require earlier disclosure have no bearing on the
situation where (as here, but unlike in Moffat v News Group) a party is seeking witness
identity disclosure in order to develop and present its own case rather than to discover how
its opponent intends to prove its case.
[61]
It is necessary to consider whether the exercise of the court's discretion in this
context is constrained by Article 8 of the European Convention on Human Rights. Although
Article 8 does not contain any explicit provisions concerning names, the concept of private
32
life is at least capable of extending to aspects relating to personal identity, such as a person's
name (e.g. Burghartz v Switzerland [1994] 2 FCR 235, (1994) 18 EHRR 101). However, all that
is being sought by way of the witness identity orders in issue in the present case is
disclosure to the representative party of the names and contact details of persons who may
have relevant evidence to provide to him. That is a situation far removed from the typical
one dealt with in the cases cited to me, in which a person's name was (or was to
be) published to the world at large accompanied by a direct (and usually incontrovertible)
allegation of serious wrongdoing against that person. While the latter situation may present
a real risk of constituting such a serious interference with the private life of the person in
question as to undermine his physical or psychological integrity, and thus to engage
Article 8, it is not seriously arguable that the mere communication of a name between parties
to a litigation as being that of someone who may or may not have something to contribute to
the resolution of the dispute risks such an effect, even though that dispute involves
allegations of fraud against corporate parties. I therefore do not consider that the
circumstances of the present application engage Article 8.
[62]
Had Article 8 been engaged, I would in any event have held that any order which the
court might actually make, and the resulting interference with the right conferred by the
Article, was capable of being regarded as being in accordance with the law (given the
existence of RCS26A.21(2)(b)(iv) and the guidance as to its likely operation provided in
Batchelor) and was necessary in a democratic society for the protection of the rights and
freedoms of the group members in this litigation, all in accordance with Article 8(2). That
would involve the conclusions against the background of the stated circumstances that the
objective of the effective litigation of the group members' claims was one sufficiently
important to justify the limitation of the potential witnesses' Article 8 right to the extent
33
inherent in the order; that the measure employed was rationally connected to the relevant
objective; that a less intrusive measure could not have been used without unacceptably
compromising the achievement of the objective; and, balancing the severity of the measure's
effects on the protected right against the importance of the objective and the extent that the
measure would contribute to its achievement, that the impact of the rights infringement
would not be disproportionate to the likely benefit of the measure.
[63]
It is also necessary to consider the impact of the GDPR. Article 23 of Regulation
(EU) 2016/679 permitted member states to whose law a data controller was subject to restrict
by way of legislative measure the scope of their relevant data protection rights so long as
that restriction respected essential and fundamental rights and freedoms and was a
necessary and proportionate measure in a democratic society to safeguard, inter alia, the
enforcement of civil law claims. In the UK, that facility was implemented, so far as relevant
for present purposes, by paragraph 5 of Schedule 2 to the Data Protection Act 2018, which
disapplies the applicable UK GPDR provisions from the disclosure of personal data where
such is required by an order of a court, as well as from disclosure necessary for the purposes
of, or in connection with, legal proceedings. It was not submitted to me that any foreign law
to which the first and second defenders may be subject, presumably the law of the Federal
Republic of Germany, was at odds with the UK domestic provisions or would criminalise
any person acting in conformity with any witness identity order which this court might
pronounce in terms of RCS26A.21(2)(b)(iv), other than (faintly and inspecifically) in
connection with the issue of the disclosure of the names of the Mercedes-Benz employees
issued with penal orders by the Amtsgericht at Böblingen, an issue which in my view falls for
reasons yet to be set out to be determined irrespective of the impact of GDPR or similar
rights. My overall conclusion on the impact of the GDPR is therefore that, while any
34
reasonable expectation of data privacy on the part of the persons whose identity is sought to
be disclosed is certainly a matter falling to be weighed in the balancing exercise to be carried
out in terms of RCS26A.21(2)(b)(iv), it cannot not in itself be determinative or even strongly
instructive of the outcome of that exercise.
[64]
The stage thus set, it is now appropriate to turn to the application of the identified
principles to the nature and terms of the request which has been made of the court. It seems
clear that the identities of the persons sought by the representative party in this regard are
not otherwise reasonably available to him, at least on the basis of the material currently in
his possession. That said, it is entirely possible, to put it no higher, that the documentation
which this court is ordering the defenders to produce may well contain clear indications of
the identities of those persons most closely involved in the events with which he is
concerned. It follows that this case may not be a typical one in which early witness identity
disclosure is reasonably necessary for effective progress, because the events in dispute
appear to have been very closely and extensively documented. By the same token, the
disclosure of witness identities may well not advance the representative party's case much, if
at all. It is acknowledged that any person whose identity is disclosed would be under no
obligation to say anything at all to the representative party's agents, and insofar as such
persons are still in the sphere of influence of the defenders, it would appear likely that they
would be advised (perfectly properly) of that fact.
[65]
It is, however, in the context of consideration of the practical feasibility of an order in
terms of the representative party's motion that the application encounters its greatest
difficulties. The persons whose identities are sought are, by and large, described by
reference to a function or functions performed by them: those "ultimately responsible" for
the design and internal approval of those parts of the emissions control systems relevant to
35
the control of NOx emissions in the affected engine types; those whose interpretation of the
meaning of the Emissions Regulations formed the basis for the design of those parts of those
systems; those "ultimately responsible" for the carrying out of NOx emissions levels testing
on the affected engine types and the certification thereof; those "ultimately responsible" for
the contents of, or who signed, the application package to the KBA for the purpose of
obtaining type-approval for the affected engine types; those who were "ultimately
responsible" for corresponding and liaising with the KBA, the RDW and the DVSA in
relation to specified recall notices; and those "ultimately responsible" for the design of the
software changes to the control systems of the affected engine types insofar as relevant to the
control of NOx emissions. Although one can entirely understand that these are precisely the
sorts of person in whose potential evidence the representative party is legitimately
interested, and I appreciate that in many ways his attempts to describe those whose
identities he wishes to know are as matters stand necessarily no more than a slightly more
sophisticated version of the party game of pinning the tail on the donkey, the fact remains
that any order pronounced by the court must be capable of practical implementation on a
reasonably certain basis, in the interests of all parties to the litigation and indeed in the
public interest in the proper administration of justice.
[66]
I do not consider that the phrase "ultimately responsible" in the various ways it is
deployed in the list to describe those in respect of whom disclosure is sought conveys with
any adequate degree of specification the category of those who would fall within the terms
of any order that might be pronounced in such terms. Design and design approval, together
with testing and certification and the composition of delicate and involved regulatory
correspondence, or liaison with regulatory authorities, are potentially complex processes in
which many people might be involved, each with a degree of responsibility which might
36
fairly be described as ultimate in respect of at least part of the process. I can see much force
in the defenders' submission that they would reasonably be greatly perplexed if required to
comply with an order in such terms. If "ultimate" is to be taken as meaning something
further up the chain of command, then it is difficult to see what the proper resting points
would be on the way up to the respective chief executive officers of each of the first and
second defenders. The severe practical difficulties which would attend the working out of
any order involving the concept of "ultimate responsibility" means that those elements of
the representative party's request which deploy that concept cannot properly be the subject
of a witness identification order, without the need for any very nuanced consideration of
where the balance for or against any such order would be struck should those difficulties be
overcome by way of some more focused expression.
[67]
In relation to the request for disclosure of the identities of those whose interpretation
of the Emissions Regulations was relied upon in the relevant ECS design, it is not clear to me
from the pleadings as they stand what interpretation is being referred to in the request. The
defences advance a view as to the proper interpretation of the relevant Regulations, but do
not suggest that that interpretation was actually in anyone's mind at the time of the events in
question as opposed to representing the view taken now on legal advice as to the true
meaning of the Regulations. Again, an order in the terms sought in such circumstances
would in practical terms be unworkable and for that reason alone cannot be granted.
[68]
A straightforward motion for the identity of the signatories of specified
correspondence would be likely to be acceptable, but it would appear that, to the extent that
such information is sought by the witness identity disclosure list, it will in any event emerge
from the production of the documents to be covered by the court's order in that regard, and
37
that a separate witness identification order would in such circumstances be quite
superfluous.
[69]
There remains the distinct request for disclosure of the identities of the Mercedes-
Benz employees who were in 2021 issued with penal orders by the Amtsgericht at Böblingen.
It appears to be clear that that court (indeed perhaps German law more generally) has
prevented the public identification of those individuals. That is the prerogative of the
foreign jurisdiction in relation to proceedings before it. Although this court always retains
the jurisdiction to make orders under RCS 26A.21(2), it would, just as in the case of the
request for the recovery of documents ordered by the Amsterdam court, be contrary to the
requirements of judicial comity for it to order the disclosure of that which the German court
or law has determined should not be disclosed. Given the uncertainty surrounding exactly
what the allegations in the German court were and what was established, and that the
degree to which the employees in question would, if identified, cooperate with enquiries
made of them by the representative party's agents is unknown, it further cannot be said that
the balance in favour of an identity disclosure order is so obvious that the making of such an
order ought to be prioritised over the demands of comity.
Conclusion
[70]
Orders for the production of the documents referred to in paragraphs 1 to 5 inclusive
of the representative party's relative list, subject to the minor adjustments already
canvassed, will be granted in terms of RCS 26A.21(2)(b)(v). Quoad ultra the representative
party's application will be refused.
BAILII: