Nurse’s affidavit critical of Volkswagen lawyers’ walk-out

A nurse suing Volkswagen arising from the car giant’s emissions scandal has described as “inappropriate and unnecessary” a walk-out by its lawyers from a District Court hearing of preliminary matters in her case.

In an affidavit, Eithne Higgins, said the High Court should reject Volkswagen's arguments that Castlebar District Court has no jurisdiction to hear her case.

Rejecting the firm’s claims that District Judge Mary Devins had prejudged the jurisdictional issue or had breached the firm’s right to fair procedures, she said the judge’s rulings on preliminary matters to date were “manifestly” made within her jurisdiction as a District Court judge.

Her affidavit was among several documents read in the continuing hearing before Ms Justice Una Ní Raifeartaigh of Volkswagen’s judicial review proceedings aimed at preventing Ms Higgins’ case continuing before Castlebar District Court.

Volkswagen says it is not seeking to stop Ms Higgins’ litigating but Dublin District Court is the appropriate venue for hers and other cases initiated here against the firm arising from installation of so-called cheat devices designed to mislead US emissions tests.

If the High Court rules Ms Higgins’ case can continue in Castlebar, the firm says it should not continue to be heard by Judge Devins because, it claims, her handling of the case to date has breached the firm’s right to fair procedures.

Ms Higgins, of Boyle, Co Roscommon, claims a 2010 Seat Leon purchased second-hand by her 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.

The case was before Judge Devins on various dates from May 2016 and the issues raised included discovery of documents and jurisdiction.

Expert opinion

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 during a September hearing after Judge Devins said she was proceeding, despite their complaints concerning jurisdiction and other matters, to hear a discovery matter.

Judge Devins 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.

Volkswagen’s lawyers indicated they intended to seek a High Court judicial review.

After they 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 and the case in Castlebar remains stayed pending the outcome of that.

On Wednesday, the second day of the review, Paul Gardiner SC, for Volkswagen, said it was not disputed by Ms Higgins’ side there was no identified contract for sale for the Seat Leon to ground jurisdiction in the Castlebar court.

The dealer in Ballyhaunis was not a party to this case, there was no contract with his clients and there was no evidence to ground Judge Devins statement she had jurisdiction based on her view the dealer was an agent of Volkswagen, he said.

This was “gilt-edged” evidence of prejudgment of the jurisdictional point, he argued.

Volkswagen was also concerned some documents in the case were provided to Irish and international media, counsel added. Although its lawyers wrote to lawyers for Ms Higgins asking that documents not be circulated, it got no response and was concerned the media reports could prompt a “deluge” of claims.

The hearing continues.