[2025] EWHC 1931 (KB)

The application by the Claimants in relation to the de-designation of documentation was initially presented by way of spreadsheet lists for each Lead Defendant together with samples identified and briefly explained in Section B to the Sixth Witness Statement of Mr Gallagher. Mr Gallagher states that the examples were chosen to illustrate a variety of recurrent categories of claims of confidentiality and to show what he said was an inconsistent approach as between manufacturers to such claims.

Notwithstanding the attempts by Mr Gallagher to categorise documents and deal with examples, the sheer number of documents involved means that the Court is left in a position where many of the documents sought to be de-designated (as listed in the spreadsheet) are not themselves before the Court; and of those examples which have been evidenced, the Court has been taken in submissions to a very small number. This is no reflection on the industry or preparation of the Claimants’ representatives. Nevertheless, as illustrated by Mr Sage in his submissions, the examples the Court was taken to in respect of particular categories did not always align with the documents said to be the examples for those categories. More significantly, the Lead Defendants are correct that in circumstances where a category of documents is plainly disparate (e.g. ‘communications’ which could include all sorts of documents covering all sorts of topics giving rise to different reasons to claim commercial confidentiality), it is very difficult, if not impossible, for the Court safely to conclude that the examples to which the Court has been taken, whether in evidence or submission, properly typify the category for the purposes of wholesale de-designation.

Perhaps in recognition of this difficulty, Mr Kramer KC emphasised the need for the Lead Defendants to have approached the exercise of de-designation in a focussed way, seeking to retain confidentiality over limited aspects of documents which otherwise contain considerable anodyne and non-confidential material. This was made clear by Cockerill J in Cavallari e.g. at paragraph [57]: ‘Any attempt to [meet the legal test for establishing confidentiality] would need to explain exactly what is revealed by a particular part of a particular document and how it could be used.’ The Claimants submit that the Court is left in the same position as Cockerill J was, where large numbers of documents have been sought to be categorised as confidential without any attempt properly to identify the parts of the documents which are confidential and explain in a focussed way that confidentiality. In the absence of targeted identification of confidential aspects, it is therefore said that the documents should be de-designated wholesale (with liberty to apply).

The Lead Defendants accept that, in large part, they have not carried out a focussed de-designation exercise in the manner envisaged in Cavallari. Their reasoning is twofold:

In response to this, the Claimants contend as follows: (1) the large number of documents to be de-designated is itself a direct consequence of the illegitimate over-designation of documents as confidential in the first place by the Defendants: it says that over 91.5% of all disclosure provided (750,000 out of 820,000 documents) have been claimed as confidential; (2) the burden of reviewing documents (many of which have been disclosed later than originally ordered) has been such that the Claimants’ identification of documents for the trial bundle and de-designation has been held up; (3) it is reasonable and necessary to de-designate documents which are not in fact confidential and which, in good faith, it is anticipated may be referred to at trial and which have been identified for inclusion in the trial bundle; (4) the Cavallari approach remains appropriate. As such, save for certain documents which the Claimants accept may, for now, remain designated as Red, all Amber documents (alternatively all Amber documents over 5 years old) ought to be designated Green (albeit with liberty to apply).

I have been left in no doubt that the allocation of documents as confidential by the Lead Defendants has been over-enthusiastic. This is explained in part by the Lead Defendants’ general approach to confidentiality in values and parameters, accounting for a large number of the documents, which I have dealt with and rejected, at least insofar as that information forms part of the pleaded allegations. In respect of other documents not containing such information, the over-designation may also be explained - at least in part - by the exigencies of carrying out a significant disclosure exercise under pressure and where time for review (sometimes even for relevance, with documents being placed under a Hollander Order) has been curtailed to maintain deadlines. It is right that the original purpose of the CRO was not to facilitate this precautionary approach to confidentiality reviews during disclosure, but the Court recognises the practical reality that this has happened as a collateral disbenefit of the pressure placed on the parties to maintain the present date for the PDD Trial.

In relation to Mr Blakeley KC’s point, for Mercedes, about the precondition for de-designation from the CRO, I accept that in circumstances where the Claimants consider in good faith that a particular document ought to be included within the trial bundle, and that document is presently designated as confidential which designation is disputed, it is both reasonable and necessary for the Claimants to seek to de-designate that document as non-confidential.

That said, I am not prepared to de-designate documents wholesale in circumstances where I accept (a) not all categories safely allow mass de-designation to be applied from example to category and (b) that a material contributing reason for the Lead Defendants’ practical inability to carry out the type of focussed exercise that, ordinarily, would be demanded of a party seeking to retain confidentiality in a document is the truncated timescales and significant pressures that have been placed on the parties and their legal representatives by the efforts to maintain the forthcoming PDD Trial.

The starting point is, as accepted by all parties, that a large number of documents have been redacted by the Lead Defendants because of the inclusion of parameters, values, technical data and equivalent information which I have dealt with in the context of the pleadings and witness statements. These documents should be de-designated to the extent consistent with the determination that such technical information contained within the pleadings is to be regarded as non-confidential. It is not clear how many documents sought to be de-designated remain in dispute once documents categorised as confidential on this basis are de-designated.

Next, the Claimants accepted for the purposes of the application that firmware/A2Ls and FFDs, and any parties’ equivalent documents, could remain confidential, considering that they contain large amounts of information irrelevant to the matters in disputes. This is notwithstanding the Claimants’ general points about the passage of time etc. This is the right approach (at least for now). There is a significant amount of irrelevant technical data in these documents, and the Lead Defendants are entitled to retain such confidentiality as may properly exist in these aspects of the documents undisturbed.

The Claimants also accepted in their written submissions that to the extent documents such as reports or presentations contained screenshots or excerpts from firmware/A2Ls and FFDs they do not need to be de-designated now, although they reserved the right to apply for de-designation at a later date. Save to the extent contained in any (now unredacted) pleading, I consider that any such extracts in other documents should remain ‘Red’. Although Mr Kramer KC sought to row back from this concession in oral submissions, I consider it appropriate that other technical extracts from the firmware/A2Ls and software which have not been extracted into the pleadings should remain confidential, with liberty to apply for further de-designation. Given the inevitable focus on pleaded issues, it is unlikely that this will impinge materially on trial practicalities, and if and to the extent any such extract which is deployed is demonstrably relevant to pleaded issues, it is likely that any application to de-designate would be met with success for the same reasons as those given in relation to extracts included in the pleadings.

As to the remainder of the documents, there is, on the basis of the sort of proposal advanced by Renault by the conclusion of the hearing, no practical difference in terms either of the workability of the trial or open justice between a designation of Green and a designation of Amber. The only difference is that (a) CPR 31.22(1)(a) would only apply to the relevant part of the document, so the collateral use restriction (on the party to whom the document is disclosed, i.e. the Claimants) would not be lost in respect of the document as a whole; and (b) the Lead Defendants would have the opportunity of applying to reinstate the full collateral use restrictions (on the Claimants) within a specified period of time. Neither of these factors impinges upon the ability of the public and journalists to see, understand and report the contents of ‘Amber’ documents in precisely the same way as a ‘Green’ document during the course of a trial. I consider that any incursion into CPR 31.22(1)(a) should be strictly limited (subject to the right to apply). Contrary to the submission of Renault, therefore, the phrase “read to or by the court, or referred to,…” should not be watered down. The extent to which this is applied to a particular document, if a dispute arises, is to be determined in the ordinary way in the context of such authorities as have considered CPR 31.22 and a bespoke wording is unnecessary.

In circumstances where the Claimants accept that the debate about de-designation necessarily involves a large number of documents which will not in fact end up being referred to at trial (notwithstanding their legitimate inclusion in an overall pool of documents which may be referred to, as is inevitably the way with a trial bundle), there is therefore little to be gained in practical terms in the specific context of this litigation in distinguishing between Green and Amber. Indeed, absent further action by the Lead Defendants during the trial, the very deployment of an Amber document will have the effect of turning the relevant part of the document from Amber to Green.

Therefore, in light of the absence of any impact on the workability of the trial or the principle of open justice, the correct balance to strike in respect of the remainder of the documents at this stage in proceedings is to maintain the designation of Amber where one of the Lead Defendants have so designated some or all of their documents. These documents will therefore be subject to the process of de-designation of the relevant part of the document upon that part being read to or by the Court, or referred to at a hearing which has been held in public. This is a practical approach which mitigates the risk of damage caused to the Lead Defendants by collateral use (by the Claimants) of confidential parts of documents which are part of, but not themselves read to or by the Court or referred to at a public hearing. It mitigates this risk without prejudicing either the Claimants or the principle of open justice.

It is therefore necessary now to consider only those documents, or parts of documents, which the Lead Defendants contend should be ‘Red’, which the Claimants consider should be de-designated.

According to the Claimants’ table produced at Annex 3 of their Skeleton Argument (as amended), the majority of remaining documents are categorised Green or Amber. The categories of documents labelled Red by various of the Lead Defendants are as follows:

The dispute relating to AES/BES documents is common to all Lead Defendants, save for Ford and Nissan. The BES is a ‘base emission strategy’ that is active throughout the speed and load operating range of the engine unless an AES is activated. An AES is an emission strategy that becomes active and replaces or modifies the base emission strategy for a specific purpose or purposes and in response to a specific set of ambient and/or operating conditions. The AES/BES documents therefore describe (i) the operation of the AES and BES, including a description of the parameters that are modified by any BES and the boundary conditions under which the BES operates and (ii) a description of the fuel logic control, timing strategies and switch points during all modes of operation.

The Claimants submit that these documents, limited in number, provide a contemporaneous account to the regulators as to how the Lead Defendants asserted that their vehicles operated. As such, they anticipate that the Court may be invited to compare what was said in the AES/BES documents with the Defendants’ pleaded case and with the expert reports. The documents are phrased in non-technical language and the Claimants submit that they do not therefore contain anything like the technical detail included, for example, in the FFD. All of the AES/BES documents relating to the Sample Vehicles to be considered at the PDD Trial are more than five years old. It is therefore said that the vehicles in production today will no longer be parameterised in the same way, particularly in the case of those vehicles with SCR technology. The same points relating to the public availability of this information are made in respect of the content of these documents. Having reviewed the documents put before the Court, and as found in Cavallari, it is clear that large parts of the documents could not sensibly be regarded as confidential. As it was put in that case in respect of an equivalent document, it ‘contains vast passages of things that are absolutely quotidian public information’.

Although some of the Lead Defendants maintain objections to the de-designation of AES/BES documents, the justification for doing so also largely echoes the debate around the redaction of parameters and values, and related graphs and maps which has been determined against the Lead Defendants.

For the same reasons as identified in respect of the parameters and values, these documents should be de-designated (and designated Amber), albeit with liberty to the Lead Defendants to apply specific and limited Red redactions in respect of technical data that is irrelevant. This is likely to be not burdensome in light of the relatively limited number of documents and it may be that the redaction of parts of the AES/BES document which are themselves not going to be deployed in cross-examination are unobjectionable to the Claimants. Without prejudging any dispute which may arise in respect of such redactions, it seems likely if there is a readily comprehensible justification for the Claimants deploying a particular part of the document, the Lead Defendants will be unlikely to justify that redaction. This determination also covers the 3 Update documents sought to be categorised as Red by Renault, which are said to be confidential for the same reasons as the AES/BES files.

The only other Type Approval documents which a Lead Defendant seeks to categorise as Red are Renault communications produced in the context of submissions to Union Technique de l'Automobile (UTAC) for the purposes of meeting the requirements of Article 3(9) of Regulation 692/2008. It is noted that other defendants have categorised equivalent documents as Green. The Claimants point to the age of the documents (well over 5 years), the fact they relate to obsolete vehicles and the high-level nature of the information. From a review of the documents, it is clear that much of the information in the documents is high-level, generic and not of a confidential nature. The technical information sought to be protected appears to be, in effect, parameters and values. For the same reasons as identified in respect of the parameters and values, these documents should be designated Amber, albeit with liberty to Renault to apply specific and limited Red redactions in respect of technical data that is irrelevant to the case only.

Under the Category of test results, reports and plans, and benchmarking, Nissan designate as ‘Red’ any document, in its entirety, produced by or relating to the ROM-DR process, referred to above. Nissan contends that these documents contain highly sensitive material that should not be disclosed openly. They are, it is said, based on performance evaluations and target requirements that Nissan set for its vehicles. These targets are unique to Nissan and differentiate its commercial offering from other OEMs. They include proprietary information belonging to Nissan. It was submitted that, given the uniqueness and proprietary nature of this information, and the fact that the procedures remain applicable to current models, albeit with varying targets, it is crucial that access to these documents is strictly controlled.

Whilst it is conceivable that there is some such information, it is evident from a review of these documents that wholesale categorisation as ‘Red’ is completely unjustified. Large parts of many of them are anodyne. It is also right that much of the relevant material sought to be redacted is, in essence, materially the same redacted parameter/value information which will enter the public domain in any event with the unredacted pleadings. However, I accept the proposition advanced by Ms Howard KC that as a ‘category’ the ROM-DR documents are not homogeneous. It would be wrong to read across from one document to another. In these circumstances, they should be designated Amber, albeit with liberty to Nissan to apply specific and limited Red redactions in respect of irrelevant technical data. Irrespective of perceived confidentiality, for the reasons explained, to the extent that that part of a document is technically relevant to the pleaded issues, the public interest is such that part should be open. The same analysis applies to ‘Red’ redactions sought to be maintained by Mercedes in respect of Test Results, reports and plans, . If design documents contain pricing information said to be sensitive, this is to be dealt with as per the communications documents below.

All the parties, save for Nissan, accept de-designation as either Green or Amber of decisions and exchanges with regulatory authorities. Nissan accept this in respect of closed (i.e. completed) investigations, but not open (i.e. ongoing) ones. There is no proper justification for this distinction. The same categorisation should apply irrespective of whether the investigation is closed or ongoing.

In terms of communications documents, Nissan’s position is that it intends to categorise the documents as Green, Amber or Red. It had not done so as at the date of the hearing, and it was therefore difficult for the parties to engage meaningfully with specific examples. As stated above, ‘communications’ is a disparate category. Insofar as the documents contain technical or commercially sensitive information which is relevant to the matters in dispute, such documents or parts of documents may be categorised as Amber. A Red categorisation is almost certainly likely to be inappropriate if the document (or part of document) is relevant to the issues; however, as Mr Kramer KC accepted as a general proposition, the Lead Defendants have liberty to apply (such application needing to be acutely focussed). There is a single communications document within the Claimants’ Annex 3 attributable to Mercedes. This was not a document which was referred to during the hearing. Having reviewed the document, it appears to date from 2008. For all the reasons given, whilst Mercedes may redact for relevance, any (old) data technically relevant to the pleaded issues is unlikely to survive an application for de-designation. This document should, subject to the foregoing, be designated Amber.

Some documentation is said to be commercially sensitive because it contains pricing information (e.g. contained within general communications categories). By way of general observation in order to reduce the likelihood of disputes arising during trial, much pricing information will not be of any particular relevance to the technical issues in the case. It may be that there is some collateral relevance if, for example, pricing considerations factor into an alleged motivation for particular technical solutions. Even so, the direct probative value is unlikely to be significant. In the specific context of Nissan/Renault, the precise details of their commercial arrangements (rather than the fact of such arrangements) are, likewise, generally not likely to be relevant. As such, pricing information can generally be redacted for relevance. However, to the extent the Claimants nevertheless wish to deploy a particular document and can justify doing so by reference to the pleaded issues, it is likely that any application for the information to be unredacted would be successful.