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We are now approaching five years from when the ‘story that won’t go away for the VW Group’ first broke and with the law in Scotland finally about to change, Scottish owners of affected vehicles, past and present, will now be able to seek compensation through the Courts as part of a group action.

There has been considerable progress made with helpful recent decisions such as in Germany and more closer to home in England and Wales. The recent judgement on preliminary matters in England takes their 91,000 claimants one step closer to achieving a result. That being said, this is not the end of the matter as far as VW Group are concerned. Even with Mr Justice Waksman finding in their judgement that what was installed in these diesel engines amounted to a ‘defeat device’ a spokesperson for the VW Group maintained that they were still not ‘liable as alleged’ and that in any event, ‘the claimants did not suffer any loss’. It is the ‘no loss’ position which has been maintained by the VW Group throughout these cases, that is to say that irrespective of any defeat device, once the vehicle has been corrected there will be no negative impact on the vehicle and no loss sustained.

The evidence we have obtained from our almost 2,000 clients together with specialist opinion suggests that such an approach by the VW Group simply does not stand up to scrutiny. Nonetheless in any civil claim where the other side are denying liability and denying there is any loss, the onus rests firmly on the pursuer / claimant to prove otherwise. What is about to be pursued in Scotland is a civil claim for compensation and in such a claim, if you are unable to prove there has been any loss suffered, there is no claim to be advanced. It is on the question of loss where, over the past few years, we have undertaken considerable work and where we are confident that a loss will be established.

Another point worth noting is that despite this very much being a global issue, it would appear that the approach of the VW Group has been to look at the cases on a national level by taking into consideration the particular circumstances and laws of each country before taking a view on if a settlement should be reached or cases contested. It would appear that things like the number of vehicles affected and the extent of their liability together with what the laws and potential penalties could be, that may have helped lead to the remarkably early settlement in USA for example. Where laws differ the approach of VW Group looks to differ also. That is why although it is very encouraging to see the progress being made in other countries, this does not mean compensation is a foregone conclusion in Scotland and why it is important, if you are affected and wish to be part of the Scottish group action you come to a specialist firm such as Thompsons.

Blog by Joel Shaw, Solicitor

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