Adam Kramer KC in successful French Blocking Statute dispute in the diesel NOx emissions litigation

On 11 June 2024, Cockerill J handed down a powerful judgment dismissing the application by the Peugeot, Citroen and Renault Defendants that all disclosure and information provided by them in the diesel NOx emissions litigation should be given through a Hague Commissioner to avoid a real risk of prosecution under the French Blocking Statute of 26 July 1968.

As English courts have previously done, Cockerill J found that there was no real risk of prosecution by the French Defendants. This was despite recent 2022 reforms to the French executive supporting the French Blocking Statute that were designed to increase the effectiveness of the statute (which Defendants said entailed a sea-change from the prior lack of enforcement by French prosecutors), and despite the French Defendants having been summonsed for interviews with French prosecutors. It was relevant to the decision that the French Defendants had not set out to the French body SISSE all the respects in which the direct disclosure route is preferable, and the French prosecutor could be expected not to prosecute if aware of the circumstances of this case: see paragraphs 136-7.

Cockerill J also held that even if there were a real risk of prosecution, she would exercise her discretion to refuse the application. The use of the Hague Commissioner route, although not excessively burdensome, would still likely disrupt the proceedings in the future, and moreover it would be a breach of comity if the French authorities were to prosecute: “a successful prosecution of a party to English proceedings for complying with an order for disclosure which this court, acting within its accepted jurisdiction, has considered and decided is both necessary to resolve this case and proportionate in ambit, would be an act which did breach comity and that a considerable weight should be given to that factor” (paragraph 165).

Adam Kramer KC acted for the Claimants, instructed by teams at Leigh Day and Pogust Goodhead, leading Kate Boakes of Matrix Chambers.

Read the judgment in full.