BCL Legal Recruitment
0845 241 0933

The Brief

The number one place for legal news, opinions, interviews and insights

Tom Goodhead

Tom Goodhead

Your Lawyers’ instructed Barrister at 9 Gough Square

Tom Goodhead discusses the ongoing Volkswagen ‘Dieselgate’ scandal

The past few weeks have seen further sickening revelations relating to the Volkswagen Dieselgate scandal. Just when Volkswagen may have thought that they had weathered the worst, it has emerged that as part of its emissions cheating scheme, Volkswagen exposed innocent monkeys to testing with poisonous NOx gases.

Pictures of monkeys in the press may now be dominating the headlines but the most serious cost of the scandal will be felt in human lives. An MIT study in 2017 estimated that the excess emissions produced by Volkswagen’s cheating would lead to 1,200 premature deaths across Europe. A separate study published in the journal Environmental Research Letters ascribed 210 early deaths in the UK to dirty diesel vehicles – many of which have been produced by VW.

Despite its fraudulent actions contributing to the deaths of hundreds of people and polluting the air for millions more, Volkswagen has not yet paid a penny of compensation to owners of vehicles in the UK, nor has it paid fines to the UK government for public health costs directly caused by its actions.

In contrast to the position in the UK, in the United States and Canada Volkswagen have paid a combined total of over $26bn in compensation and fines, with many more lawsuits still to come. Individual Volkswagen executives have been prosecuted and jailed and the US government continues to investigate those responsible for the Dieselgate scandal.

If authorities and courts in the US and Canada have been able to hold Volkswagen to account, why has the same not happened in the UK and Europe?

Volkswagen’s stated position is that the law in Europe differs from the US. It claims that stricter pollution standards in the US mean that it has been necessary to compensate there, because many of the vehicles could not be modified to comply with the emissions standards, whereas more lax standards in Europe mean that such a “fix” is possible.

Volkswagen’s position is, however, unsupportable both in law and in fact.

The legal prohibition against defeat devices (the pieces of software installed on electronic control modules in engines) is identical in the relevant US and European legislation. Volkswagen has been found to have installed defeat devices in vehicles in both continents by regulators. In the UK, the Vehicle Certification Authority (which granted type approval to Skoda vehicles) determined that Skoda vehicles with the EA189 engine also contain impermissible defeat devices.

The stricter pollution standards which apply in the US are a red herring. Volkswagen cheated in the UK and in Europe just as it did in the US. Without the defeat devices installed on Volkswagen vehicles, those vehicles would not have obtained type approval and could not have been sold in the European Union.

There is, therefore, no reason why Volkswagen should not pay compensation and fines in the UK and EU as it has done in the US and Canada. In fact, given that Volkswagen has sold nearly double the number of affected vehicles in the UK than in the US, and given the UK’s far smaller geographic area (which means the NOx pollutants cause greater harm per capita), Volkswagen should pay greater compensation and fines in the UK than in the US.

Volkswagen has committed a fraud and should be dealt with just like any other criminal enterprise.

In fraudulently deceiving UK consumers to purchase vehicles that they otherwise would not have bought, Volkswagen has caused those purchasers to incur significant financial losses, including the immediate loss in value of a vehicle which occurs as soon as it is driven off a forecourt. Owners who purchased vehicles on finance entered into costly credit agreements that they otherwise would not have signed up to. Purchasers who were particularly concerned about the environment have suffered great distress in the knowledge that rather than benefitting the environment, they are driving vehicles which are contributing to thousands of premature deaths.

As well as compensation for individual owners, the UK government should be taking significant actions against Volkswagen. If it were to initiate criminal proceedings, Volkswagen could be subject to an unlimited fine. Similarly, the government could consider the use of proceeds of crime legislation in order to seek to recover the entirety of the financial benefit that Volkswagen has gained from its criminal actions.

If Volkswagen genuinely wishes to rehabilitate itself and to seek to restore its corporate reputation, it should do so by paying UK consumers and the UK government the compensation and fines they are owed as a result of one of the largest corporate frauds in history. If Volkswagen will not do so, then lawyers and politicians must not fail in their task of holding Volkswagen to account.


Leave Comment

Please be polite. We appreciate that.

Your e-mail address will not be published and required fields are marked.