VW faces new allegations about second cheat device

The Volkswagen emissions scandal began in September 2015 and found that the German automaker had programmed its diesel cars to only activate their emissions controls when they were being tested. After this cheat device was exposed, VW promised to make things right and fix the affected diesel cars but, now, lawyers have been given permission to bring further evidence to trial in the UK.

The lawyers suing VW over the original cheat device now allege that the fix put in place by VW only makes vehicles compliant within a narrow ‘thermal window’. New evidence suggests that the updated vehicles are only within the legal emissions limits between 15C and 32C, meaning they remain highly polluting for much of the year.

Outside of these temperatures, the vehicles would revert to unlawful levels of Nitrogen Oxide (NOx), which can be potentially lethal. These allegations are being brought by Leigh Day and Slater and Gordon who have been given permission to include this in their case around the cheat claim in the UK.

New evidence has pushed back the date of the VW trial in the UK. It was scheduled for March 2022 but these recent allegations mean it’s been moved to January 2023 to allow for this evidence to be collected and prepared.

Leigh Day solicitor Shazia Yamin said: "We argue that the fix that VW has applied actually does not work and does not bring them within EU emissions regulations. Now the court has allowed us to amend our pleadings because this is a very important issue – there is continuing impact on the environment and our clients are aggrieved."

"VW has admitted that the fix is a defeat device, albeit a lawful one, in other European jurisdictions but refused to admit the same in the UK,” added Gareth Pope, lead lawyer from Slater and Gordon, which represents 70,000 customers suing VW.

Following publication of this news item, we were contacted by a spokesperson for Volkswagen Group who requested that we add the following statement that presents the Group's position on this issue. In the spirit of balance and transparency, we are happy to oblige.

According to a spokesperson for the Volkswagen Group: "The Claimants are amending their claim against Volkswagen Group to allege that the thermal window is a prohibited defeat device. They still have to go on to successfully establish their claim and the amendment does not provide any indication that the claim will be successfully established.

"Adding an additional claim is a very low bar/hurdle to overcome. The thermal window was expressly notified to and specifically approved by the German regulator, the KBA. No regulatory authority has found the thermal window in EA189 engines, or indeed any other manufacturers’ vehicles, to be prohibited defeat devices.

"Volkswagen Group and the KBA deny any suggestion that the technical measures were not valid and accordingly the Volkswagen Group will contest this in court. The thermal window has been a standard feature in diesel, and indeed some petrol, cars of all manufacturers around the world to help to protect the engine from damage at certain temperatures or to ensure the safe operation of the vehicle. 

Customers should be assured that their vehicles are, and have always been, safe, roadworthy and legal to drive in the UK, whether or not they had the technical measures implemented. Volkswagen remains confident in our case that we are not liable to the claimants as alleged and the claimants did not suffer any loss at all.  We will continue to defend our position robustly."

Jess Shanahan

Author:Jess Shanahan
Date Updated:18th Nov 2020

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