It is “remarkable” that car giant Volkswagen is blaming a District Court judge for giving publicity to its “fraud”, counsel for a nurse suing the firm here arising from its emissions scandal has told the High Court.
Feichin McDonagh SC made the comment during submissions opposing proceedings on behalf of Volkwagen aimed at preventing Eithne Higgins’s case continuing before Judge Mary Devins at Castlebar District Court.
Ms Higgins, of Boyle, Co Roscommon, claims a 2010 Seat Leon purchased second-hand by her from a garage in Ballyhaunis, Co Mayo, is among the estimated 11 million cars worldwide affected by the emissions problem. She is claiming loss and damage in sums to be ascertained, including for any amounts which may be due for motor tax.
Volkswagen says it is not seeking to stop Ms Higgins litigating but Dublin District Court is the appropriate venue for cases initiated here against it arising from the installation of so-called cheat devices designed to mislead US emissions tests.
It claims Castlebar District Court has no jurisdiction to hear her case and contends Judge Devins had prejudged the jurisdictional issue and breached the firm’s right to fair procedures in rulings on preliminary matters in the case.
The District Court proceedings remain on hold pending the outcome of the High Court case before Ms Justice Una Ni Raifeartaigh.
On Thursday, the judge heard final submissions from Mr McDonagh who also read sections of a transcript of proceedings before Judge Devins on September 6th last when lawyers for Volkswagen walked out of the District Court after saying the firm’s legal advice was the court had no jurisdiction to proceed as the District Judge proposed.
Abuse of process
Before September 6th, Volkswagen’s lawyers had not objected in the District Court at “crucial” points to the process under way there and to do so now was an abuse of the process of the High Court, counsel said. This was an attempt to prevent the District Court exercising its lawful jurisdiction and should be rejected by the High Court.
As matters stand, there is a motion before the District Judge for decision and Volkswagen could appeal or seek judicial review if it is unhappy with that decision, he said.
Beginning his closing arguments for Volkswagen, Mr Gardiner said there no contract between Ms Higgins and his clients concerning her car and no evidence to ground Judge Devins’s statement that she had jurisdiction based on her view the Ballyhaunis dealer was an agent of Volkswagen.
Ms Higgins’s side have failed to address central questions raised by Volkswagen concerning the District Court’s jurisdiction, he argued.
Previously, the court heard Ms Higgins’s case was before Judge Devins on various dates from May 2016 and the issues raised included discovery of documents and jurisdiction. Lawyers for Ms Higgins had sought to have Volkswagen make public the original expert opinion and technical evidence it used to develop a fix for the affected engines.
Volkswagen’s lawyers walked out of court on September 6th after Judge Devins said she was proceeding, despite their complaints concerning jurisdiction and other matters, to hear a discovery matter. Judge Devins also said she had earlier accepted Ms Higgins’s car, bought second-hand from Rochford Motors in Ballyhaunis, Co Mayo, was bought from an agent of the maker and she had thus accepted jurisdiction.
Evidence
After Volkwagen’s lawyers left court, Judge Devins heard evidence, including from expert witnesses for Ms Higgins who said there was a lack of data in affidavits from Volkswagen to support claims the firm had found a way of removing the cheat devices that did not impact on either CO2 emissions or fuel economy.
On September 15th, Volkswagen Group Ireland and Volkswagen AG secured leave from the High Court for judicial review. The hearing continues on Friday.
