Michael Lott & Ors v PSA Automobiles SA & Ors
[2023] EWHC 2568 (KB)
Thomas John Joshua & Ors v Renault SA & Ors
11 June 2024
[2024] EWHC 1424 (KB)
High Court
A UK court had to decide if a French law (the FBS) stopped it from ordering car companies to give information in a big lawsuit. The court decided the French law didn't really apply, as the companies had to provide information in a fair way, and prosecuting them for this would be unfriendly between countries (bad comity).
Key Facts
- •This case concerns the application of the French Blocking Statute (FBS) to disclosure requests in the context of the "Pan-NOx" or "Dieselgate" emissions litigation.
- •Over 1.5 million claimants have brought proceedings against car manufacturers.
- •The case involves two additional lead group litigation orders (ALGLOs): Nissan/Renault and Peugeot-Citroën (PCD).
- •The FBS prohibits the disclosure of certain economic, commercial, industrial, financial, or technical information to foreign authorities without using international cooperation mechanisms like the Hague Convention.
- •The Defendants argue that recent changes in French administration and enforcement increase the risk of prosecution for non-compliance with the FBS.
- •The Claimants argue that the risk of prosecution is minimal given the past lack of enforcement and the nature of the disclosure requests.
- •The Court considers expert evidence on French law, the history of FBS litigation, and the applicability of the Hague Convention.
Legal Principles
The English Court has jurisdiction to order disclosure even if compliance might entail a breach of foreign criminal law.
Bank Mellat v HM Treasury [2019] EWCA Civ 449
The Court will not lightly make an order where compliance would entail breaching foreign criminal law, considering comity.
Bank Mellat v HM Treasury [2019] EWCA Civ 449; Akhmedova v Akhmedov [2020] EWHC 2235 (Fam); Brannigan v Davison [1997] AC 238
The party alleging risk of prosecution bears the burden of proving it; a difference of expert opinion does not automatically establish such risk.
Public Institution for Social Security v Al Wazzan [2023] EWHC 1065
The Court must conduct a balancing exercise, weighing the risk of prosecution against the importance of the documents for the proceedings and the fairness/convenience of using the Hague Convention.
Bank Mellat v HM Treasury [2019] EWCA Civ 449
The Court can fashion orders to minimize concerns under foreign law, for example, by imposing confidentiality restrictions.
Bank Mellat v HM Treasury [2019] EWCA Civ 449; Ventouris v Mountain [1991] 1 WLR 607
Foreign law is a question of fact to be proved by expert evidence.
Various
Outcomes
The Defendants' applications for orders appointing a commissioner under the Hague Convention are rejected.
The Court finds no real risk of prosecution under the FBS. Even if there were a risk, the balancing exercise favors direct disclosure due to comity considerations and the minimal prejudice to the claimants.
The Court declares there is no real risk of prosecution.
The changes in French administration do not constitute a "paradigm shift" resulting in a real risk of prosecution. The summonses issued to the Defendants' employees do not indicate an imminent prosecution, considering that no disclosure has occurred yet. Comity considerations are highly relevant and weigh against a finding of real risk.