What can we help you with today?
Joseph Mackay v Nissan Motor Co Ltd and others: "The Nissan/Renault Diesel NOx Emissions Group Proceedings"
The recording of this livestream is currently unavailable. We are sorry for any inconvenience this may cause.
Case: GP3/23 and GP4/23
Thursday, 03 October 2024
10:30 to 11:15
This is an archive of a livestream. Find out about restrictions on livestreaming.
Joseph Mackay v Nissan Motor Co Ltd and others: "The Nissan/Renault Diesel NOx Emissions Group Proceedings"
GP3/23
Thursday 3 October 2024
10:30 to 11.15
Lord Pentland
In summary, Mr MacKay applied for permission to bring group proceedings concerning the alleged fitting to Nissan and Renault diesel vehicles by their manufacturers of prohibited defeat devices for the control of nitrogen oxide emissions during regulatory testing. He also applied to be authorised as the representative party on behalf of a number of individuals claiming to have suffered loss as a result of that behaviour. Those were granted by the court.
The first to fifth defenders (Nissan) seek to review (reclaim) that decision.
Tuesday 1 April 2025
10:30 until conclusion
First Division
Overview
[1] This reclaiming motion (appeal) concerns the eligibility of the representative party, Joseph Mackay, to bring group proceedings under section 20 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018.
[2] Joseph Mackay has applied for permission to bring group proceedings and to be the representative party concerning the alleged fitting to Nissan and Renault diesel vehicles by their manufacturers of prohibited defeat devices for the control of nitrogen oxide emissions during regulatory testing. It is estimated he brings proceedings on behalf of approximately 8,500 persons claiming to have suffered loss as a result of that alleged behaviour.
[3] In 2002 Renault and Nissan had formed Renault-Nissan BV, a jointly owned entity in which they owned equal shares to determine the strategy of the alliance and to coordinate its activities.
[4] In February 2023 the board of Renault Group and Nissan Motor Co Ltd announced that the alliance would pursue various new initiatives on the basis of enhanced cooperation between member companies.
[5] The operation of the strategic alliance had brought about a situation whereby many Nissan models that would be the subject matter of these proceedings would feature engines that were manufactured by Renault and vice versa.
[6] Nissan (defenders one to five) and Renault (defenders six to ten) maintain that they have remained separate corporate entities and are separately responsible for obtaining type approval for the vehicles they manufactured.
Group Proceedings in Scotland
[7] In Scotland, a person, known as the “representative party” is able to bring group proceedings on behalf of a group of people only if the court considers that all the claims within the group raise the same issues, whether in fact or law, and the representative party has made reasonable efforts to notify all potential members of the group about the proceedings.
[8] Before granting an applicant status as a “representative party” in group proceedings under the 2018 Act the court will consider numerous factors. These include the applicant’s expertise on the subject matter of the proceedings, their own interest in the proceedings, the benefit (financial or otherwise) derived from the proceedings, independence from the defenders of the proceedings, demonstration that the applicant will act fairly and in the interest of the group as a whole, and that they are able to meet the costs of litigation.
[9] In this case there are three substantive issues in contention. First, whether the cases forming the group proceeding are factually similar in nature when there are two distinct groups. Secondly, whether there is enough evidence for a case against the defenders. Thirdly, whether the applicant, as the proposed representative party could act fairly and without conflict to other members of the group, and whether he is able to conduct the litigation due to lack of information on his source of funding and indemnity of the litigation.
[10] The court is not adjudicating on the issues in dispute between the parties, but rather these procedural questions of whether group proceedings are the best way of determining the issues between the parties.
Proceedings before the Lord Ordinary
[11] The defenders argued that Nissan and Renault have remained separate corporate entities, and they were separately responsible for obtaining type approval for vehicles they manufactured. Therefore, the factual backgrounds of the proceedings are not the same or similar. The Lord Ordinary considered the proposed proceedings to be sufficiently factually similar, in that each member proposed that a defeat device was fitted in a vehicle in which they had a financial interest, and as a result they had suffered loss.
[12] The next issue was whether there was a sufficient case against the defenders. The Lord Ordinary held that at this early stage, this requires no more than the appearance of a serious question or questions to be tried, which the pursuer group has demonstrated.
[13] The defenders argued that Mr Mackay is not a suitable applicant to be appointed as a representative party. On consideration of the criterion for a representative party, the Lord Ordinary did not consider that Mr Mackay’s status as a Nissan owner placed him in conflict with those members of the group who may be Renault owners at this stage, but if a conflict arose at a later stage Mr Mackay could be replaced. The Lord Ordinary accepted the pursuer’s position, that an undertaking had been provided for the funding of the litigation, and that such an undertaking was sufficient to demonstrate the applicant’s financial resource.
[14] The Lord Ordinary authorised Mr Mackay to be the representative party for the purposes of the group proceedings. He thereafter granted permission for Mr Mackay as the representative party to bring group proceedings to be known as “Renault Nissan Nox Emissions Group Proceedings.”
This Reclaiming Motion
[15] The defenders appeal against this decision of the Lord Ordinary. The defenders argue the proceedings cannot efficiently be dealt with as one single action. The defenders state that the pursuers written case is insufficient to succeed against the defenders, and it does not deal with the material differences between the different types of pursuer. They argue that the Lord Ordinary erred in finding that the proceedings raised the same, similar or related issues. In addition, when considering the representative party, the defenders argue that the Lord Ordinary erred in determining that the applicant had demonstrated he was a suitable person to be appointed, as a person with no special abilities or relevant expertise nor someone who had satisfied the court that he would act fairly and in the interest of all of the group members.
The First Division will hear the appeal on 1 April 2025.