BMW DIESEL EMISSIONS SCANDAL

We believe BMW installed defeat devices in certain Diesel cars that were designed to reduce emissions levels in a regulatory test environment. Without passing these tests, the cars would not have been cleared to drive on UK roads. Put simply, we believe BMW cheated the emissions tests. The software appears to have identified when the engine was operating under regulatory test conditions and reduced the levels of pollutants being pumped out so it passed the test. But this kind of environmental performance could never be replicated under real life driving conditions. The defeat devices used by BMW are different in their details to what Volkswagen used in the Dieselgate scandal but the effect (and we say, clearly the intention) was broadly the same.

Not directly. We believe all car manufacturers installed defeat devices differently so the technical case against BMW will be different. However, broadly speaking, we believe the settlement is a positive development for all emissions cases in this jurisdiction.

A defeat device is any element of design, software or hardware in a car which detects different vehicle conditions (e.g. temperature, vehicle speed, engine speed etc) and adjusts or disables the car’s emission control system. In the case of BMW (and VW, Mercedes and Vauxhall) the manufacturers appear to have written software into the computer unit that controls the engine.

The practical effect of a defeat device is that it can detect when it is in a test environment (because the tests have standard conditions which the defeat device can be designed to identify) and tell the engine it needs to reduce the emissions it is producing in order to pass that test.

By contrast, when the car is outside of a test environment (i.e., most if not all of the time), it recognises that and the vehicle pumps out unlawful levels of NOx and other pollutants without the driver realising.

The reason for using a defeat device appears to have been that the engines in question could not meet the emissions test and produce an acceptable consumer driving experience.

Assuming the claim succeeds, drivers that purchased, financed or leased a new or used Diesel BMW between 2009 and 2016 did so on a false premise and may be able to receive compensation.

These consumers had a reasonable expectation their car would meet certain environmental and performance standards. That’s what they were promised in the glove compartment handbook.

The reality was that the cars were far more polluting than drivers were told. They pumped more harmful substances like NOx into the atmosphere, which are known to cause thousands of premature deaths a year in the UK – academic research has also established that long-term exposure to air pollution increases the risk of serious infection and death from COVID 19. Unable to meet international emissions standards, these cars should never have been on the road.

The cars would also be worth less than the drivers paid for them (because BMW did not deliver an environmentally compliant car which also met performance expectations) and are worth even less today in the second-hand car market. Drivers were sold a combination of environmental impact and driving performance that was a fiction – it could never happen under normal conditions and BMW knew that.

Put simply, BMW did not provide the car drivers paid for.

We estimate that 500,000 UK drivers have purchased or leased a new or second-hand BMW during the period when we say BMW was cheating the tests. Each of these motorists could be eligible to claim compensation.

Drivers who bought a second-hand car may be eligible for compensation too.

This will depend on a range of factors including how much drivers paid for their car and how much harm the Court determines BMW caused by its behaviour. Under consumer protection laws, motorists could recover between 25% and 75% of the price of their vehicle depending on the severity of the misleading or aggressive practice or the difference between the market price of the product at the time of sale, and the price paid. This could be many thousands of pounds, even for second-hand owners. Purchasers of affected cars have already been awarded compensation in other countries. Below are some examples of pay outs in similar cases in other countries. Remember, however, that the English Courts are not bound by these decisions and will have to make their own calculation of loss for vehicle owners.

In the US, claimants received between US$5,000 and US$10,000 from VW and between US$822.50 and US$3,290 from Mercedes.

In Spain, VW claimants were awarded €3,000 each.

In Germany, there has been a large range of awards against VW ranging from €1,000 to tens of thousands of Euros for each claimant (against Daimler/Mercedes, awards of over €40,000 have been given).

In the Netherlands, a court declared that first-hand VW owners were entitled to €3,000 and second-hand VW owners were entitled to €1,500.

The Court has recently decided that a Group Litigation Order (or ‘GLO’) is the most appropriate way to manage the claim and has made a GLO.

A GLO is a procedural mechanism that allows lots of claims with “common or related issues” of fact and/or law to be managed together as one case.

We are still in the relatively early stages of the litigation, but we have issued claims against BMW on behalf of nearly 30,000 clients at Court.

We are working with the other claimant law firms who have issued large numbers of claims, which are now subject to the GLO. We will be working hard over the next few months to assist with compiling the Group Register, which is a detailed schedule of all the Claimants to the proceedings and to finalise our Generic Particulars of Claim (‘GPOC’), which sets out our case against the Defendants in great detail. The Defendants will then be required to provide their Generic Defence to the GPOC.

We are also in the process of asking our clients to complete the Schedule of Claimant Information survey as quickly as possible. This is an important step in the litigation and is Court ordered. Please check your emails (including junk and spam folders) and complete the survey to progress your case to the next stage.

No.

The lawyers and other interested parties only get paid if there is a win at the end of the case (see above). If the claim is successful, the lawyers and other interested parties (including the litigation funder) are paid from the proceeds recovered from BMW. If the case is unsuccessful, the clients pay nothing.

Any costs that need to be paid up-front or along the way (e.g. barristers, Court fees and experts) are covered by a litigation funder. The litigation funder is paid back at the end of the case out of the lawyers’ share of the compensation – not the consumer’s (see below).

The lawyers are Milberg London, a leading firm for consumer and group litigation.

The case is being funded by a third-party litigation funder. The funder will pay for the hard costs associated in bringing the claim including court fees, barristers and experts. In addition, Milberg London are working on damages based fee agreements which means they do not charge fees unless and until there is a successful outcome in the case.  

Our legal team are working hard behind the scenes to progress your claim. We will endeavour to provide you with regular updates every 6 to 8 weeks with developments happening in your case.

In addition, you can always get in touch with your Case Manager for an update, email [email protected] or call us on 020 3824 6541.

There are a number of reasons why a vehicle may be ineligible:

• It was not manufactured within the relevant time period.
• It is not a model we have identified as being affected by the Diesel emissions scandal.
• We do not have enough information or documentation from you in order to validate your claim.

Unfortunately, the wheels of justice turn slowly, and group actions of this scale and complexity take many years to work their way through the Court system.

We are required to work through the English Court system and the many procedural steps required by the rules, thus the speed at which cases move is not entirely within the control of the Claimants or their lawyers and depends on the availability of the Courts as well as the conduct of the Defendants. However, a lot of progress has been made recently. It is possible the case is resolved in the next 24 to 36 months.  

There is also always the possibility that claims will settle before the Court process comes to an end, for example as with the settlement recently reached with VW in relation to the VW NOx Emissions Claim.

That is not a problem. We believe you still have a valuable claim even though you have sold the vehicle. Your claim and loss will be based on the period you owned the car. You can still join our group.