Thursday 27 October 2016

'I'm simply going to to try and leave that aside' - Judge's reaction to 'unusual' Volkswagen case proceedings

Published 07/09/2016 | 13:10

Volkswagen (AP)
Volkswagen (AP)

AN APPLICATION for further discovery is set to be made against Volkswagen after a court was told the information provided by the car manufacturer was “inadequate”.

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At Castlebar District Court this morning Judge Mary Devins said she accepted the respondents had not complied with a court order for discovery.

She described the actions of the legal team for Volkswagen, which saw them stage a walk-out in court yesterday, as “probably one of the most unusual things I have seen”.

Yesterday Junior Counsel Paul Fogarty and two solicitors from A&L Goodbody walked out of Castlebar District Court during a discovery hearing into a case regarding emissions.

They stated that the court did not have jurisdiction to hear the case and were it to proceed they would seek a judicial review.

Today Judge Devins said she was trying very hard to leave aside the bizarrely stunt-like nature of legal counsel representing a global company.

She had never before witnessed an incident where a Junior Counsel had attempted to read a statement into court and had refused to divulge the full authors of the statement when requested to do so.

“There were so many unusual facets to that behaviour yesterday that I’m simply going to to try and leave that aside,” she added.

She said the question of jurisdiction had been raised in May and she had ruled on it. No challenge to this had ensued prior to September 1.

She added that if Volkswagen instruct its legal team to go the High Court she would await that with interest.

The case is being taken by Roscommon nurse and mother of three Eithne Higgins, of Croghan in Boyle.

She is taking a case against Volkswagen Group Ireland and Volkswagen AG and is is seeking compensation after Volkswagen admitted cheating on emissions tests last year. 

The case will deal with whether there was an issue with carbon dioxide (CO2) and / or oxides of nitrogen (NOx) emissions on the vehicle in question.

Evan O’Dwyer counsel for Ms Higgins said evidence given yesterday by three expert witnesses showed the data provided to date by Volkswagen had been inadequate.

The car company had provided an affidavit from Volkswagen Group Ireland’s technical services manager Stephen McDonnell.

However, the court heard it was the opinion of emissions expert Dr Horace Calvert Stinson, that Mr McDonnell was not the correct person to be providing the evidence in the first place and the affidavit had been based on third party advice and hearsay.

Mr O’Dwyer requested a further order be made directing the car manufacturer to provide further data in the case.

He requested technical information relating to the CO2 issue, the NOx issue and any correspondence between the car manufacturer and German regulators.

He said this was not “overly onerous” on the respondent as the information was readily available and had been provided to other tribuna including the US Senate and EU regulators.

Mr O’Dwyer said he was very anxious that the integrity of the court was protected and that when an order was made it must be abided by.

“In this case an order was not complied with. The court was defied yesterday and I think that sets a very dangerous precedent,” he added.

Judge Devins said following the evidence heard yesterday she was quite satisfied that the order for discovery made by the court was not complied with.

She said she would consider any application for further discovery made by counsel for the claimant.

She also questioned whether this information should be served on the respondent considering they had absented themselves from proceedings.

Mr O’Dwyer pointed out counsel for Volkswagen had not been involved in the hearing, had failed to tender a witness, did not allow for that witnesses cross examination and did not remain to cross examine his witnesses.

“Their actions indicate they are not partaking in this case,” he added.

Judge Devins requested Mr O’Dwyer provide her with a draft for further application of discovery and she would then decide if the respondents should be notified.

The case will continue later this month.

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