William Mackie against Mercedes Benz Group Aktiengesellschaft and others (Court of Session) [2025] CSOH 29 (14 March 2025)

OUTER HOUSE, COURT OF SESSION

[2025] CSOH 29

GP4/24

OPINION OF LORD SANDISON

In the cause

WILLIAM MACKIE

Representative Party for Pursuer

against

(FIRST) MERCEDES-BENZ GROUP AKTIENGESELLSCHAFT;

(SECOND) MERCEDES-BENZ AKTIENGESELLSCHAFT;

(THIRD) MERCEDES-BENZ CARS UK LIMITED;

(FOURTH) MERCEDES-BENZ RETAIL GROUP UK LIMITED;

(FIFTH) MERCEDES-BENZ VANS UK LIMITED; and

(SIXTH) MERCEDES-BENZ FINANCIAL SERVICES UK LIMITED

Defenders

Representative Party: Middleton KC;

Slater and Gordon

Defenders: Duncan KC; Smart KC, Breen, Watt, Solicitor Advocate; Brodies LLP

14 March 2025

Introduction

[1]

These are group proceedings arising out of claims that prohibited defeat devices

within the meaning of Articles 3.10 and 5.2 of EU Regulation 715/2007 were present in the

diesel engines of certain Mercedes-Benz vehicles which the group members bought or

leased. It is said that those devices reduced the effectiveness of the vehicles' nitrogen oxide

("NOx") emissions control systems under driving conditions which might reasonably be

expected to be encountered in normal vehicle operation and use. The defenders variously

designed, manufactured and installed the engines in question into vehicles, imported the

relevant vehicles into the UK market and distributed them here, or else financed their

purchase or lease by the group members.

[2]

It is claimed that regulatory approval for the engines was obtained without

disclosing the presence of the defeat devices to the relevant authorities, all with a view to

cheating the emissions testing regime, to allowing the vehicles in which the devices were

present to be put on the consumer market along with a Certificate of Conformity falsely

certifying that the vehicle complied with the emissions legislation in force at the time it was

produced, and to defraud purchasers and lessees of affected vehicles.

[3]

The German automative standards regulator, the KBA, is said to have discovered the

use of a defeat device in a Mercedes-Benz vehicle in 2018, in response to which, it is claimed,

the first and second defenders made various software changes to the vehicles' engine control

units, which nonetheless did not render the vehicles compliant with applicable emissions

standards.

[4]

The group members variously seek damages for losses said to have been sustained

by them as a result of alleged fraudulent misrepresentation, fault and negligence, breach of

statutory duty and breach of contract, and in satisfaction of several varieties of consumer

right.

[5]

The defenders deny that any of the relevant vehicles contained a prohibited defeat

device, and explain at length the reasons which underlie that position.

[6]

The representative party now seeks to recover documents and to obtain an order for

the identification of witnesses so as to improve the statement of his case. The defenders

oppose in part the grant of the orders he seeks and at the preliminary hearing I directed that

the matter be argued fully before the court so that the matter could be determined by it.

Relevant provisions

[7]

Article 8 of the European Convention on Human Rights is in the following terms:

"Right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and

his correspondence.

There shall be no interference by a public authority with the exercise of this

right except such as is in accordance with the law and is necessary in a democratic

society in the interests of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others."

[8]

Chapter 26A of the Rules of the Court of Session 1994 ("Group Procedure") contains

inter alia the following provisions:

"Procedure in group proceedings

26A.3.--(1) Subject to the other provisions of this Chapter, the procedure in

proceedings to which this Chapter applies is to be such as the Lord Ordinary is to

order or direct.

...

Preliminary hearing

26A.21.--(1) An action in proceedings to which this Chapter applies is to call for a

preliminary hearing within 14 days after defences have been lodged.

(2)

At the preliminary hearing, the Lord Ordinary ...

(b)

may make an order in respect of any of the following matters

...

(iv)

disclosure of the identity of witnesses and the existence and

nature of documents relating to the proceedings or authority to

recover documents either generally or specifically;

(v) documents constituting, evidencing or relating to the subject-

matter of the proceedings or any correspondence or similar

documents relating to the proceedings to be lodged in process within

a specified period;

...

(e)

may make such other order as the Lord Ordinary thinks fit for the

efficient determination of the proceedings.

...

Power to make orders

26A.27. At any time before final judgment, the Lord Ordinary may, at the Lord

Ordinary's own instance or on the motion of any party, make such order as the Lord

Ordinary thinks necessary to secure the fair and efficient determination of the

proceedings."

Documents in issue

[9]

The representative party has lodged a list of documents in respect of which he asks

the court to order production. He asks for that order to be made in terms of RCS

26A.21(2)(b)(iv) and (v), or alternatively by way of the grant of commission and diligence.

The salient terms of that list are as follows:

"Certificates of Conformity

The COC delivered by the First and Second Defenders under Article 18.1 of

Directive 2007/46/EC of the European Parliament and of the Council, to accompany a

vehicle with one of each of the affected engine types.

Vehicle Emissions Control Systems and Devices and NOx Emissions Levels

All documents (including, but not limited to, NOx emissions levels testing

results; software, hardware and firmware design and specification documents;

engine failure modes, effects and analysis documents; and, written communications

between the First and Second Defenders' engineers, between said engineers and said

Defenders' management and between said engineers and said Defenders' internal

regulatory compliance personnel) in the hands of the First and Second Defenders,

relative to the design and manufacture of the emissions control systems

("ECS") (including, but not restricted to Exhaust Gas Recirculation, Selective

Catalytic Reduction and NOx Storage Catalyst systems, referred to by the

Representative Party in Conds 10 and 12 and by the Defenders in Answers 10, 10.2,

12 and 21.2) installed into (i) the Euro 5 A180 CDI BlueEfficiency SE vehicle model,

with a 1,461cc OM607 engine manufactured in 2013 and (ii) the Euro 6 A180 D

vehicle model, with a 1,461cc OM607 engine manufactured in 2016 and showing or

tending to show:

(a)

the elements of design of the ECS in said models which sense

temperature, vehicle speed, engine speed, transmission gear, manifold

vacuum or any other parameter for the purpose of activating, modulating,

delaying or deactivating the operation of any part of said models' ECS, so as

to reduce the effectiveness of said ECS as regards NOx emissions (hereinafter

referred to as a "device(s)");

(b)

the function and calibration of each software, hardware and firmware

component that is, or contains, such a device(s) in said models;

(c)

the mode and parameters of the operation and effect of such a

device(s) on said models' NOx emissions levels while driven under

regulatory test conditions (Answer 10.4);

(d)

the mode and parameters of the operation and effect of such a

device(s) on said models' NOx emissions levels while driven outwith

regulatory test conditions (Answer 10.4);

(e)

the internal analysis conducted by or on behalf of the First and Second

Defenders relating to and demonstrative of what they understood, at the time

of manufacture, to constitute driving "conditions which may reasonably be

expected to be encountered" by said models "in normal vehicle operation and

use", in terms of Article 3.10 of the Emissions Regulations (Cond 15 and

Answer 10.4);

(f)

the nature, extent and consequences of the engine damage or accident

(if any) which would be sustained without the use and operation of such a

device(s) (Answer 10.7);

(g)

in what way said affected vehicles could not be operated safely

without the use and operation of such a device(s) (Answers 10.2 and 10.7);

and

(h)

the levels of NOx (measured in terms of milligrams per kilometre or

otherwise) emitted by said models when driven both under and outwith

regulatory test conditions (Cond 10 and Answer 10.3).

Type-Approval Authorities

All documents (insofar as not already called for) submitted by the First, and

Second Defenders to and their correspondence with the German Kraftfahrt-Bundesamt

("KBA") Type-Approval Authority, in the hands of said Defenders, relevant to the

applications for and granting of Type-Approval for (i) the Euro 5 A180 CDI

BlueEfficiency SE vehicle model, with a 1,461cc OM607 engine manufactured in 2013

and (ii) the Euro 6 A180 D vehicle model, with a 1,461cc OM607 engine

manufactured in 2016 and showing or tending to show (Cond 9 and 14):

(a)

the date, nature and content of the application package (including the

"information folder" and "information package", as defined in Articles 3.38

and 3.39 respectively of said Directive 2007/46/EC) for EU Whole Vehicle

Type Approval submitted to the KBA, insofar as relevant to the NOx

emissions of said models;

(b)

the date, nature and content of the application package (as defined in

Para 3(a) hereof) for Emissions Type-Approval of the ECS submitted to the

KBA, insofar as relevant to the NOx emissions of said models;

(c)

the information provided to the KBA by the First and Second

Defenders for the purpose of satisfying the KBA that said models conformed

to the relevant type approval as regards NOx emissions levels, in accordance

with Regulations 4 and 5 of the Emissions Regulations, and that they met the

NOx emissions limits set out in Annex I thereof (Cond 11); and

(d)

the date and content of the Type-Approval Decision issued by the

KBA in respect of said models (Answer 11.1).

Regulatory Investigations, Recalls and Software Updates

All documents (insofar as not already called for), (including, but not

restricted to, administrative recall decisions), in the hands of the First and Second

Defenders, relating to the recall notices issued by (i) the KBA (ii) the Netherlands

Divisie Voertuig Regelgeving & Toelating ("RDW") and (iii) the UK Driver & Vehicle

Standards Agency ("DVSA") detailed in Condescendence 14 and showing or tending

to show (Cond 14 and Answers 10.8 and 11):

(a)

the nature of said recall notices issued by the KBA, RDW and DVSA

in relation to the NOx emissions levels of the affected engine types; and

(b)

for each affected engine type, where software updates have been

carried out relative to the recall notices detailed in Condescendence 14:

(i)

the brand and model (including the engine model, engine

code, engine capacity and production period) relevant thereto;

(ii)

the dates when the First and Second Defenders were first

advised that such recalls and software update programmes were

required and how and by whom they were so advised;

(iii)

the date, nature and content of all software update

programmes implemented by or on behalf of the First and Second

Defenders from 1st September 2009 to date in relation to the NOx

emissions of affected engine types (Cond 11 and Answer 10.8);

(iv)

the nature of all faults, issues and emissions strategies that

such recalls and update programmes were intended to rectify in

relation to the NOx emissions of affected engine types; and

(v)

the nature and effect of said recalls and software update

programmes on the NOx emissions levels of the affected engine types,

including details of (a) what vehicle ECS parameters were updated

(b) the effect that said recalls and update programmes had on the ECS

with regards to the level of NOx emitted outwith regulatory testing

conditions, and (c) the effects of said recalls and updates in relation to

fuel economy, engine damage and accident, component service life,

diesel exhaust fluid refill interval, driveability and driver safety.

Software Updates and Communications with Customers

All documents in the hands of the First, Second, Third, Fourth and Fifth

Defenders relating to the software updates referred to in Para 4 hereof, carried out on

the affected engine types and showing or tending to show the reasons given to the

group member owners, registered keepers and lessees of vehicles with affected

engine types as to why said software updates were required (Conds 11 and 14 and

Answer 10.8).

Technology Suppression Cartel Decisions

European Commission

(a)

The full and unredacted decision of the European Commission, dated

8th July 2021, in relation to Daimler AG's breach of anti-trust competition

rules.

(b)

All documents referred to in said European Commission decision of

8th July 2021.

(c)

All documents which are part of the administrative files relating to the

investigations leading to the European Commission decision dated 8th July

2021.

(d)

All documented requests for information made by the European

Commission to the Defenders in relation to said breach of anti-trust

competition rules and their responses thereto.

Korea Fair Trade Commission (KFTC)

(a)

The full and unredacted decision the Korea Fair Trade Commission

(KFTC), dated 9th February 2023, in relation to the first defenders' collusion

with BMW AG, Volkswagen AG and Audi AG in curbing emissions-cleaning

technology in diesel vehicles.

(b)

All documents referred to in said KFTC decision dated 9th February

2023.

(c)

Alldocuments which are part of the administrative files relating to the

investigations leading to the KFTC decision dated 9th February 2023.

(d)

All documented requests for information made by the KFTC to the

Defenders in relation to said curbing emissions-cleaning technology in diesel

vehicles and their responses thereto.

The First Defenders' written response to the order of the Amsterdam District

Court of 13th November 2024 (C/13/686493/HA ZA 20-697), referred to in

Condescendence 14.

Failing principals, drafts, copies or duplicates of the above or any of them."

[10]

It is expressly accepted by the representative party that no documents prepared in

contemplation of litigation should be recovered by either of the mechanisms invoked.

[11]

The representative party also asks for an order to be made in terms of RCS

26A.21(2)(b)(iv) for the disclosure of the identity of witnesses, in the following respects:

"1.

The identity of the person or persons employed or engaged by the First and

Second Defenders who was or were ultimately responsible for the design and

internal approval (within said Defenders' organisations) of those parts of the

emissions control systems ("ECS") relevant to the control of NOx emissions

(including the Exhaust Gas Recirculation, Selective Catalytic Reduction and NOx

Storage Catalyst systems, referred to by the Representative Party in Conds 10 and 12

and by the Defenders in Answers 10, 10.2, 12 and 21.2) of the Mercedes-Benz

branded motor vehicles which contain an OM607, OM622, OM626, OM640, OM642

or OM651 diesel engine to which the Euro 5 or Euro 6 standards apply (under

exception of such vehicles manufactured to Euro 6d and Euro 6d Temp standards),

hereinafter referred to as "affected engine types".

If different from the person or persons referred to in Paragraph 1 hereof, the

identity of the person or persons employed or engaged by the First and Second

Defenders upon whose "interpretation" (as referred to in Answer 10.4) of the

meaning of the terms of Articles 3.10 and 5.2 of the Emissions Regulations the design

of those parts of the affected engine types' ECS relevant to the control of NOx

emissions was or were based.

The identity of the person or persons employed or engaged by the First and

Second Defenders (be that the identity of the "manufacturer" or the "manufacturer's

representative", as defined in Articles 3.27 and 3.28 of the Framework Directive, or

any other person or persons) who was or were ultimately responsible (within said

Defenders' organisations) for the carrying out of NOx emissions levels testing on the

affected engine types and the certification thereof for the purpose of demonstrating

to the German Kraftfahrt-Bundesamt ("KBA") type-approval authority that the

emissions limits set out in Annex I of the Emissions Regulations were met, in terms

of Article 4.1 of said Regulations.

The identity of the person or persons employed or engaged by the First and

Second Defenders (be that the identity of the "manufacturer" or the "manufacturer's

representative", so defined, or any other person or persons) who was ultimately

responsible (within said Defenders' organisations) for the contents of or who was the

signatory to the submission of the application package (including the "information

folder" and "information package" as defined in Articles 3.38 and 3.39 of the

Framework Directive) to the KBA, for the purpose of obtaining type-approval for the

affected engine types.

If different from the person or persons referred to in Paragraphs 3 and 4

hereof, the identity of the person or persons employed by the First and Second

Defenders (be that the identity of the "manufacturer" or the "manufacturer's

representative", so defined, or any other person or persons) who was ultimately

responsible (within said Defenders' organisations) for corresponding and liaising

with the KBA, the Netherlands RDW Divisie Voertuig Regelgeving & Toelating and the

UK Driving and Vehicle Standards Agency regulatory authorities in relation to the

recall notices detailed in Condescendence 14 and said Defenders' responses to said

notices.

The identity of the person or persons employed or engaged by the First and

Second Defenders upon who was ultimately responsible (within said Defenders'

organisations) for the design of the software changes to the affected engine types'

ECS, insofar as relevant to the control of NOx emissions, as referred to in

Condescendence 11 and Answer 10.8.

The identities and job titles of the three Mercedes-Benz employees who were

issued with penal orders by the local court (Amtsgericht) of Böblingen in Germany in

or around July 2021, in relation to the fraudulent manipulation of the exhaust

emissions in Euro 6 engines, referred to in Condescendence 14."

[12]

Reference to the Emissions Regulations in the list is to EU Regulation 715/2007 and

the Framework Directive referred to is EU Directive 2007/46/EC.

[13]

Shortly before the hearing of the representative party's motion, my opinion in

relation to a document recovery exercise in analogous litigation against Vauxhall/Opel was

issued: Batchelor v Opel Automobile GmbH [2025] CSOH 18. In Batchelor, I held that the

powers given to the court relating to the provision of documentary material in group

proceedings were very wide indeed, and did not fall to be exercised in strict conformity with

the principles developed by the court in the exercise of its common law powers to grant

commission and diligence, but rather that the proper exercise of those powers would turn on

(a) consideration of how directly or otherwise the material sought to be recovered appeared

to bear upon matters properly in (or likely properly to be in) dispute, (b) the respective

positions of the parties in relation to access to potentially significant information (including

their ability or inability to access it without the assistance of the court) and (c) the respective

legitimate benefits and burdens (the latter in terms of time, trouble and expense) of the

making of the order sought or something approximating to it. The question of witness

identification was not directly addressed in Batchelor.

[14]

In light of the content of my opinion in Batchelor, the representative party modified

somewhat the list of documents which it had previously sought to recover into the version

already set out.

Submissions for the representative party

[15]

On behalf of the representative party, senior counsel submitted that the onus would

be on him to prove that defeat devices had been deployed in the vehicles in question, and

if he did so the onus would then be on the defenders prove that any such devices were not

prohibited or that their effect had been removed by the software update. In order to assist

him in his task, the representative party sought orders under RCS26A.21(2)(b)(iv) for

information as to the identity of various relevant witnesses connected to the defenders who

were responsible for the design of the emissions control systems of specified affected engine

types and for the obtaining of Type-Approval therefor from the regulatory authorities; and,

under Rule 26A.21(2)(b)(iv) and (v), for the production of documents or specified kinds of

document relating to the proceedings. In relation to document recovery, paragraphs 1 to 5

of the list of documents sought in the present case approximated as closely as circumstances

allowed to the recovery orders granted in Batchelor. To address the defenders' concerns that

emissions levels testing was usually conducted in respect of one representative vehicle from

a given line, and that each of the two vehicle models specified in paragraphs 2 and 3 of the

documents list might have had more than one emissions Type-Approval, the representative

party was content that the words "one vehicle falling within each of the following

categories" might be added after "installed into" in the preamble to paragraph 2 and after

"granting of Type-Approval for" in the preamble to paragraph 3 of the list.

[16]

In relation to the documents sought by paragraph 6, averments had lately been

added into the representative party's pleadings setting out a claim that Daimler AG (as the

first defender was then known), Volkswagen, Audi and BMW had collectively engaged in

anti-competitive conduct by suppressing the roll-out of NOx-reducing technology in relation

to the use of exhaust fluid or "AdBlue" in the selective catalytic reduction systems of vehicles

sold in the EU and the EEA. The European Commission had issued a decision in that regard

on 8 July 2021, inter alia commenting on the use of small AdBlue tanks, which had

advantages in terms of vehicle weight (and, therefore, fuel consumption and CO2 emissions

- but at the expense of higher NOx emissions) and available construction space and stating

that such usage had taken place between 25 June 2009 and 1 October 2014. The first

defender was named as a "direct participant". While the representative party did not have a

claim based on a breach of competition law, he did have a case based on the use of

prohibited exhaust fluid or AdBlue conservation strategies. These averments were highly

suggestive of fraudulent conduct in the face of existing, but suppressed, NOx reducing

technology. The representative party only had a copy of the Summary of Commission

Decision (Case AT.40178 Car Emissions) and sought access to the full decision and the

documents which underlay it. The first defender had agreed to produce the full decision

and certain other documents from the Commission file in corresponding litigation in

England: Cavallari v Mercedes-Benz AG [2023] EWHC 1888 (KB), [2024] RTR 1 at [18].

[17]

Turning to paragraph 7 of the document list, averments had also been added recently

to the representative party's case concerning similar anti-trust proceedings and findings in

South Korea, in respect of which the first defenders had been fined $14.5 million. The same

considerations applied in this connection as to the European Commission Decision and its

related documents. In Cavallari, early disclosure of the Korean Decision and all documents

referred to in it had been ordered [2023] EWHC 1888 (KB) at [36] and [37].

[18]

Paragraph 8 of the document list dealt with proceedings in the Amsterdam District

Court described in averments also latterly made by the representative party, to the effect

that, by order of that court dated 13 November 2024 in similar NOx emissions "mass tort"

litigation, the first defender was ordained to answer a number of specific questions as to the

existence and function of defeat devices, any claimed exceptions thereto under Article 5.2 of

the Emissions Regulation, and the effect thereon of any software updates. The court's order

required a response by 5 February 2025. If, as the defenders suggested, no response had

actually been lodged in Amsterdam, this court's order should require it to be produced in

these proceedings as soon as it was lodged there.

[19]

Insofar as witness identification was concerned, the court's power to order any

person to disclose information as to the identity of potential witnesses in existing or likely

proceedings was not new see Section 1(1A) of the Administration of Justice (Scotland) Act

1972. The relative paucity of prior authority on the point was probably due to the fact that

(i) in non-group proceedings cases, the identity of relevant witnesses was normally relatively

self-evident, and (ii) in group proceedings, insofar as the representative party was aware, the

court had not yet been asked to invoke the RCS26A.21(2)(b)(iv) power.

[20]

It was accepted that any order made had to be relevant, necessary and proportionate.

The evidence of the witnesses whose identification was sought was likely to be relevant to

(i) existence and purpose of defeat devices; (ii) any defence of technical justification under

Article 5.2 of the Emissions Regulation for example, engine protection and safe vehicle

operation; (iii) the levels of NOx emitted from the affected engine types under and outwith

regulatory test conditions; (iv) how and on the basis of what documentation and

information Type-Approval was obtained from the regulatory authorities; (v) the nature and

purpose of post-manufacture changes to the emissions control system software;

(vi) misrepresentation to the regulatory authorities and, by extension, to the group

members; and (vii) in the context of prescription, fraud and error in terms of section 6(4) of

the Prescription and Limitation (Scotland) Act 1973.

[21]

The court would have to ask itself why the identification of particular witnesses was

being sought and what each would be asked to speak to. In relation to the first of those

questions, it was acknowledged that the description of the witnesses whose identities were

sought might be thought to be wide. That was necessary due to the complex nature of the

litigation, the wide ranging (but relevant) facts to which the potential witnesses would be

asked to speak and because, thus far despite previous requests for the production of

documents which might have assisted in further refining the request the defenders had

refused to produce any documentation or even offered to look into the identity of the

witnesses who would speak to matters raised in the current proceedings. They should not

be permitted to delay matters further by demanding that the representative party should

seek to extract witness identities from any documents recovered. The early identification

and precognition of relevant witnesses was essential in proceedings of this nature. It ought

to be obvious that the information sought related to the identification of those people who

were ultimately responsible for the design, testing and approval of the emissions control

systems of affected engine types, for the applications for Type-Approval to the regulatory

authorities, and for liaising with those authorities as regards vehicle recalls and for the

software changes. The representative party did not want to be inundated with the names of

hundreds or thousands of people, but simply the identities and, by extension, for obvious

practical purposes, the contact addresses of those people who, on the instruction and with

the authority of the corporate defenders, oversaw, approved and formally signed off the

relevant designs and interactions with the regulatory authorities. In the first instance, the

defenders could be ordained to provide the names of a restricted number of relevant people

for each paragraph of the relevant list. Paragraph 7 of that list contained a specific request

for the identities of three employees who were the subject of penal orders imposed by the

local court (Amtsgericht) of Böblingen in Germany in July 2021, in relation to the fraudulent

manipulation of exhaust emissions.

[22]

The GDPR concerns raised by the defenders had no merit. By virtue of Paras

5(2) and 5(3) of Part 1 of Schedule 2 to the Data Protection Act 2018, the provisions of the

GDPR did not apply to the disclosure of personal data where that disclosure was required

by an order of a court or was necessary for the purpose of, or in connection with, legal

proceedings.

[23]

It was accepted that Scots law did not recognise a system of binding pre-proof

deposition and that any person identified under any Chapter 26A.21 order could not be

compelled to answer any question posed by the representative party's agents. That,

however, was not a reason to refuse the making of such an order.

[24]

In relation to Article 8 of the European Convention on Human Rights, an individual's

right under that Article to respect for his private and family life, his home and his

correspondence potentially applied to any witness who was precognosced or who gave

evidence in any litigation in Scotland. If it presented a bar to witness identity disclosure,

Rule 26A.21(2)(B)(iv) would be unenforceable and redundant. Any person whose identity

had to be disclosed could take their own legal advice in relation to the provision of a

precognition or what questions to answer. Individuals would simply be asked about

matters of fact, and no allegations of the commission of fraud or other legal constructs

would be put to them. If the defenders' position that defeat devices were not deployed was

correct, that exercise would provide a convenient and useful occasion for them to

demonstrate that position.

[25]

I was dissatisfied with what was initially said on behalf of both the representative

party and the defenders in relation to the potential impact of Article 8 on the witness

identity request and invited further submissions on the matter. At that point, counsel for the

representative party vacillated somewhat on whether the proposed witness identity

disclosure order fell within the scope of Article 8(1) at all, and referred to Tickle v BBC

[2025] EWCA Civ 42 at [56] and [57] for the proposition that the Article was engaged only if the

"high threshold" was reached that proposed publication of a person's identity would

present a real risk of constituting such a serious interference with his private life as to

undermine his physical or psychological integrity. That proposition was derived from

Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331,

[2023] Fam 287, [2023] 3 WLR 575 per Lord Burnett CJ at [60], from Re Guardian News and Media Ltd

[2010] UKSC 1, [2010] 2 AC 697, [2010] 2 WLR 325, per Lord Rodger of Earlsferry at [37]

[42], and in turn from the decisions of the ECtHR in Kabolu and Oran v Turkey (Applications

no. 1759/08, 50766/10 and 50782/10; [2018] ECHR 900), 30 October 2018 at [50] [51] and in Von Hannover v

Germany 2004 EMLR 21, (2005) 40 EHRR 1 at [50]. On that basis, counsel ultimately

maintained that the threshold would not be met by disclosure of the names of the witnesses

sought by the representative party's application, and so the Article was not engaged. If it

was, then at least on the application of the relatively unstructured proportionality test

espoused by counsel any interference with the witnesses' private life would in the present

circumstances be justified in terms of Article 8(2).

Submissions for the Defenders

[26]

On behalf of the defenders, it was submitted in writing that the motion seeking an

order for the disclosure of witnesses should not be entertained, having been intimated with

little notice. Responding to it in the time available had proved extremely difficult.

[27]

Dealing first with the application for the disclosure of documents, the defenders

submitted that this matter should be dealt with as if it were an application for the grant of

commission and diligence (as the representative party sought in the alternative to his

primary motion under RCS26A). The representative party's application was not a targeted

request for identified documents. If granted in its current form, the defenders reasonably

and conservatively estimated that hundreds of thousands of documents would be caught.

Rules 26A.21(2)(b)(iv) and (v) were not intended to be used for, and were not apt to cover,

requests of that nature. They made no provision for an excerpting process. As a matter of

generality, it was not uncommon for only part of a document to be responsive to a call with

the remainder of the document being irrelevant. In the commission and diligence

procedure, that was dealt with by the appointment of a commissioner to excerpt only the

relevant material. Under Chapter 26A, absent the appointment of a commissioner, it was

unclear whether the task of removing or redacting irrelevant material would be performed

by the party disclosing the document, by the court, or otherwise. The mirroring provisions

in commercial procedure in the court had not diminished the use of commission and

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

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

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.

[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

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

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

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

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

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

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.

[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.

[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.

[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

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.

[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

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

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

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

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

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

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.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> William Mackie against Mercedes Benz Group Aktiengesellschaft and others (Court of Session) [2025] CSOH 29 (14 March 2025) URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025csoh29.html Cite as: [2025] CSOH 29

Scottish Court of Session Decisions