Jeffers v Volkswagen Aktiengesellschaft

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Heslin
Docket NumberHigh Court Record No. 2018/488CA Circuit Court Record No. EC008/2017
Date16 December 2020

EASTERN CIRCUIT

BETWEEN
MICHAEL JEFFERS
PLAINTIFF
AND
VOLKSWAGEN AKTIENGESELLSCHAFT, VOLKSWAGEN GROUP IRELAND LIMITED, BRIMBAY LIMITED T/A SHEEHY MOTORS (NAAS)

AND

VOLKSWAGEN BANK GMBH
DEFENDANTS

[2020] IEHC 662

High Court Record No. 2018/488CA

Circuit Court Record No. EC008/2017

THE HIGH COURT

JUDGMENT of Mr. Justice Heslin delivered on the 16th day of December 2020
1

The fundamental issue in the present application, which involves a hearing, de novo, consequent on an appeal brought by the First, Second and Fourth Named Defendants (hereinafter “the Volkswagen Defendants”) against a Circuit Court order made by His Honour Judge O'Sullivan on 19 October 2019, is whether the Plaintiff is required to furnish replies to certain particulars raised by the Volkswagen Defendants in relation to the claim in the Plaintiff's equity civil bill dated 27 March 2017.

The Plaintiff's claim
2

The Plaintiff is a doctor and it is pleaded that on or about 23 April 2015 he agreed to purchase a motor car. The Plaintiff's pleaded claim includes inter alia specific pleas that the motor vehicle in question was being offered for sale by the Defendants and/or each of them, their respective servants or agents. The Plaintiff also pleads that he made known to the Defendants and/or each of them, their respective servants or agents that he required a motor vehicle which was inter alia of merchantable quality. He also pleads that, in order to induce him to enter into an agreement, the Defendants and/or each of them, their respective servants or agents made certain representations to him including as to merchantable quality and to the effect that the vehicle had low emissions with a low motor tax rate and was fuel efficient. It is pleaded that the Defendants and/or each of them, their respective servants or agents made these representations fraudulently and the Plaintiff pleads that, relying on those representations and not otherwise, he agreed to purchase a motor car from the Defendants and/or each of them, their respective servants or agents in consideration of the sum of €21,950.00 which, it is pleaded, was paid to the Defendants and/or each of them, their respective servants or agents.

3

It is not in dispute that the Third Named Defendant is the garage where the car was acquired the Third Named Defendant plays no part in the present appeal. It is not in dispute that finance to purchase the relevant motor car was provided by the Fourth Named Defendant, in circumstances where the Plaintiff pleads that he entered into a hire purchase agreement with the Fourth Named Defendant on 23 April 2015 in respect of the sum of €14,000, for a period of 36 months with the relevant interest rate being 6%. The balance of the total purchase price is pleaded as being a trade-in value of €3,950.00 together with a cash payment of €4,000. The indorsement of claim in the relevant equity civil bill which was issued by the Plaintiff on 27 March 2017, runs to just over five pages of text and, among other things, a list of express and/or implied conditions or terms are pleaded as comprising part of the agreement whereby the Plaintiff purchased the car. In the alternative, it is pleaded that equivalent representations and/or warranties were made by the Defendants and/or each of them, their respective servants or agents. It is also pleaded that in breach of the relevant agreement, the representations were false and untrue and the Defendants and/or each of them, their respective servants or agents were in breach of the pleaded conditions and/or terms in that it is pleaded that the motor vehicle was not of merchantable quality, not fit for purpose, did not correspond with its description, was not a low emission motor vehicle, was not fuel efficient as represented, had not complied with all statutory or regulatory requirements and applicable emissions standards or limits, had not lawfully passed all motor vehicle emissions testing, may be subject to higher motor tax than represented, was not free from defects and it is also pleaded that, in breach of conditions, warranties or guarantees, the Defendants and/or each of them, their respective servants or agents did not have the necessary skill to render the service and did not supply the service with due skill, care and diligence.

4

The case made by the Plaintiff against the Defendants and/or each of them their respective servants or agents is that they were guilty of negligence, breach of duty and/or breach of statutory duty and that the pleaded representations and/or warranties detailed in the equity civil bill were false and untrue and that the Defendants and/or each of them, their respective servants or agents were guilty of fraud and/or negligence in making the said representations or warranties and the Plaintiff pleads loss under various headings in particular breach of contract, negligence, breach of duty, breach of statutory duty, fraud and/or misrepresentation, explicitly pleading that the Plaintiff has suffered loss, damage, inconvenience, upset and/or expense.

Particulars of loss and damage
5

Under the heading of “Particulars of Loss and Damage” the Plaintiff pleads, inter alia, that he had a long-standing relationship with the Defendants and or each of them, their respective servants or agents, having previously purchased Volkswagen motor cars from the Defendants and/or each of them. It is pleaded that the Plaintiff is required to perform a considerable amount of driving in his profession as a doctor, working in four different hospitals in Dublin and Kildare at least once a week. Among other things it is pleaded that:

“In or about the beginning of 2008, the Defendants, and or each of them, their respective servants or agents conceived the idea of installing engine controlled unit software (hereinafter referred to as a “cheat device”) in motor vehicles fitted with a type EA189 diesel engines. The aforementioned software could detect when a particular motor vehicle was undergoing emissions testing and would thereby give a false reading of the Nitrogen Oxide (NOx) levels of the particular vehicle during emissions testing, which said readings were inaccurate and false thereby enabling the vehicle to successfully pass the emissions testing. However, during normal driving conditions, the said emissions control software was deactivated and/or shut off in order to attain greater fuel economy and additional power, resulting in greater pollution.

In or about September, 2015 the Defendants and/or each of them, their respective servants or agents publicly admitted that the said cheat device was and/or is installed in approximately 11 million vehicles with type EA189 diesel engines worldwide.

By letter dated October, 2015 the Plaintiff was informed by the Defendants, and/or each of them, their respective servants or agents that his aforesaid motor vehicle was one such vehicle which was fitted with the aforesaid EA189 diesel engine and cheat device. In light of the Defendants, and/or each of them, their respective servants or agents' actions and/or the deliberate concealment of these actions, they have unilaterally breached the mutual relationship of trust and confidence with the Plaintiff. The Plaintiff is gravely concerned about the reliability and/or performance of his said motor vehicle. The Plaintiff was informed by letter dated March, 2016 from the Defendants, and/or each of them, their respective servants or agents that his said motor vehicle is now required to undergo both a software update to the engine management system together with a “technical measure” to rectify the concealed cheat device with which the said engine was fitted. The said technical measure involves fitting a flow transformer directly in front of the air mass sensor in the said engine, which the Defendants' allege will stabilise the air flow in front of the sensor to improve accuracy. These measures will involve opening up the engine in the Plaintiff's aforesaid motor vehicle at a local Volkswagen dealer. The Plaintiff's expert engineer has significant concerns in this regard as the proposed measures involve opening the induction system of the Plaintiff's said motor vehicle, which is a vital area of any motor vehicle, in a setting other than under factory conditions. As such this increases the risk of possible engine damage and/or engine failure post modification and repairs. It is unknown what effect, if any, both the software and technical update/solution to the problem will have on the engine itself, the longevity of the said motor vehicle and on the fuel consumption levels, performance levels, and/or emissions levels. In addition, it is unknown whether the Plaintiff's said motor vehicle will be subject to a higher rate of motor tax.

At this juncture it is unknown how the Plaintiff's said motor vehicle will perform following the aforementioned software and technical updates and/or repairs and further particulars may arise on foot of same.

Furthermore, the Plaintiff's aforesaid motor vehicle will henceforth be known as a motor vehicle affected by the aforementioned emissions scandal and is a fact which will have to be disclosed to any future purchaser. As such the Plaintiff's said motor vehicle may be subjected to a diminution in value beyond what one would reasonably expect a second-hand motor vehicle to experience on resale and/trade in.

By reason of the matters aforesaid, the said motor vehicle was worthless or worth far less than the said sum of €21,950.00 paid by the Plaintiff. In addition to which, the Plaintiff, pursuant to the aforesaid Hire Purchase Agreement, has been discharging interest on the principal sum of €14,000 at a rate of 6% per annum since on or about the 23rd day of April, 2015, together with all other associated fees thereon and as such the Plaintiff seeks the return of all payments made – pursuant to the Hire Purchase Agreement to date.

The Plaintiff...

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1 cases
  • National Truck Rental Company Ltd v Man Importers Ireland Ltd
    • Ireland
    • High Court
    • 5 July 2022
    ...Ltd v. Pura Food Products Ltd & Anor (Unreported, High Court, Herbert J., 23 rd April 2004) and Jeffers v. Volkswagen Aktiengesellschaft [2020] IEHC 662, all cases concerned with the case-law on particularisation of damage. However, I respectfully do not see that it is necessary for me to c......

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