Jaguar group loses appeal against grant of permission for diesel engine group claim to proceed

About this case:

• Citation:
  [2025] CSIH 16
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Clark

The reclaimers, members of the Jaguar Land Rover group of companies and associated finance partners, argued that the lord ordinary erred in finding that Steven Milligan was a suitable person to be the representative party in the proceedings. In their second reclaiming motion, they argued that the applicant did not have a prima facie case and had not demonstrated that the action had a real prospect of success.

The appeal was heard by the Lord President, Lord Pentland, along with Lady Wise and Lord Clark. Lord Davidson of Glen Clova KC and Boffey, advocate, appeared for the defenders and reclaimers, with A Smith KC, Milligan KC, Middleton KC and Black, advocate, appearing for the applicant and respondent.

Bar should be low

The original applicant to be the representative party was a Ms Rutherford, but Mr Milligan was substituted in her place after the defenders opposed that application. Mr Milligan’s personal claim was in respect of three cars, with the group as a whole comprising 6,465 pursuers who had purchased, owned, or leased Jaguar or Land Rover vehicles with Euro 5 or Euro 6 diesel engines. While Mr Milligan had no special ability or expertise, this was provided by the funders, Quantum Claims Compensation Specialists Ltd, and representatives involved in the litigation.

It was held by the lord ordinary that Mr Milligan could be expected to act fairly and adequately in the interests of the group as a whole, and any concerns about finances were addressed by the underlying strength of Quantum Claims’ balance sheet. In response to the defenders’ concerns that Quantum Claims had overextended itself in the respect that it was funding a number of diesel emissions cases, the lord ordinary noted that it would be open to them to seek caution for expenses.

For the reclaimers it was submitted that no attempt had been made to lodge evidence demonstrating how the applicant might act during proceedings, particularly in managing conflicts of interest between the funders/insurers and the group members including the various sub-groups. The applicant was plainly not dominus litis, and by allowing the claim to proceed the defender would be obliged by the court to take the risk of very substantial unmet awards of expenses.

Counsel for the respondent submitted that the bar to appointment as a representative party was, and should be, low. In respect of permission, the requirement for real prospects of success had broadly the same meaning as in judicial review cases and was simply intended to filter out obviously unmeritorious claims and no more.

Discretionary sphere

Delivering the opinion of the court, Lord Clark began by noting: “Decisions to authorise an individual as the representative party and to give permission for proposed group proceedings to be brought are discretionary in nature. Whether to grant or refuse the applications does not involve hard-edged questions of legal principle of the type that are amenable to review on their merits by an appellate court. Rather, such decisions entail the exercise of broad powers of case-management in the overall interests of the fair administration of justice and can only be reversed on appeal in strictly constrained circumstances. The resolution of such questions falls pre-eminently within the discretionary sphere of decision-making entrusted to the Lord Ordinary.”

He continued: “The weight to be given to the various individual points was quintessentially for the Lord Ordinary to determine, as the discretionary decision-maker. Before we could interfere with his assessment, we would require to be satisfied that he has left out of account some relevant factor or taken account of an irrelevant consideration or that his decision was in some sense wholly unreasonable or unjudicial. There is no basis to conclude that the reclaimers’ submissions have met this test.”

Considering the second motion, Lord Clark said: “It is clear that the Lord Ordinary reached the correct conclusion on each point. On prima facie case, his view that questions of relevancy and specification are not dealt with at this juncture in the action is correct. The question of allegedly unspecific allegations of fraud made in the draft summons is again a matter to be dealt with when the pleadings are finalised. The low test for a prima facie case at this preliminary stage is met.”

He concluded: “The argument that there was no basis for the averments made that the proposed group members’ vehicles contained cycle recognition devices is plainly a matter to be dealt with as the case progresses. It is clear that the Lord Ordinary has extensive case-management powers. The test for real prospects of success is again plainly met.”

Both reclaiming motions were therefore refused.