Continuing misrepresentation defers prescription and s140B Consumer Credit Act remedies are justiciable in Court of Session group proceedings: Commentary on Batchelor v Opel [2025] CSOH 93

Introduction

This detailed commentary examines the Outer House opinion of Lord Sandison in David Brian Batchelor (Representative Party) v Opel Automobile GmbH & Others [2025] CSOH 93, part of the Vauxhall & Opel NOx Emissions Group Proceedings. The case proceeds alongside the Mercedes-Benz Group NOx proceedings and concerns mass claims by consumers who purchased or leased diesel Vauxhall-branded vehicles alleged to have contained prohibited “defeat devices” contrary to EU Regulation 715/2007 and related European and UK type-approval legislation.

The representative party advances multiple causes of action: fraudulent and negligent misrepresentation; unlawful means conspiracy; breach of statutory duty; contract and consumer remedies; Consumer Protection from Unfair Trading Regulations (CPRs) remedies; and unfair relationship relief under sections 140A–140B of the Consumer Credit Act 1974 (CCA). The defenders deny the presence of prohibited defeat devices, invoke regulatory exemptions, and contest all delictual, contractual and consumer remedies—including on prescription (time bar) and jurisdiction.

The debate focused on preliminary issues: the proper pleading threshold for fraud and conspiracy in a mass group context; the scope of the Court of Session’s jurisdiction to determine unfair credit relationship claims under the CCA in group proceedings; whether negligent misrepresentation to a mass audience can found a duty of care; the operation of the Prescription and Limitation (Scotland) Act 1973, particularly section 11(2) (continuing act) and section 6(4) (fraud/induced error and reasonable diligence); the timing and prescription of a later-introduced unlawful means conspiracy case; and the viability of the defenders’ alternative factual and legal positions under the “weaker alternative” rule.

Summary of the Judgment

Pleadings in group proceedings and fraud: In a mass group context, fair notice is assessed pragmatically. The representative party gave sufficient notice of the alleged fraudulent misrepresentations—including Certificates of Conformity (CoCs) and marketing—to proceed to proof. Corporate attribution need not be tied at this stage to a single “directing mind”; the Meridien approach may apply contextually.
Negligent misrepresentation duty: The court articulates a two-limb threshold for a duty of care in mass-market statements causing pure economic loss. A relevant duty can arise only where (1) the statement contains factual material directly about emissions compliance; and (2) it is made in a context aimed at inducing a vehicle acquisition transaction. On this analysis, negligence claims based solely on implied statements by the fifth and sixth defenders (finance provider and retailer) are irrelevant; certain explicit statements by the manufacturing/marketing entities may proceed to proof.
Unlawful means conspiracy: The case is relevantly pled and proceeds to proof. The court emphasises intention may be inferred where unlawful conduct is directed toward a category of persons (purchasers/lessees) and there is no just cause or excuse. False emissions statements can constitute unlawful means; combination may be inferred.
Consumer Credit Act jurisdiction: The Court of Session has jurisdiction under section 140B(2)(c) CCA to determine unfair relationship remedies within these group proceedings, because “amounts paid or payable” are relevant to the overall claim. Ancillary jurisdiction is independently available under section 22(4) Civil Jurisdiction and Judgments Act 1982. The remedies are not confined to the sheriff court when advanced under s140B(2)(c) as part of “other proceedings”.
Prescription—section 11(2) continuing act: The court rejects the view that section 11(2) only applies where loss is continuing. It applies to continuing acts/neglect/default. Misrepresentations can be “continuing” where they remain operative until withdrawal or discovery; therefore section 11(2) may defer the start of the quinquennium for pre-2017 acquisitions. This will be determined after proof.
Prescription—section 6(4) fraud and induced error: “Fraud” for section 6(4)(a)(i) is broad (Dryburgh), covering deliberate actings designed to disappoint legal rights; Lord Sandison indicates “calculated” may better capture the test than “intended”. For induced error under section 6(4)(a)(ii), there is no threshold that conduct must be sufficient to mislead an objective reasonable person; what matters is whether the debtor’s words or conduct in fact induced the creditor’s error. Reasonable diligence remains an objective proviso to be resolved after proof.
Prescription—post-2018 section 11(3) and (3A): For post-1 June 2017 acquisitions, awareness and reasonable diligence issues are live and require proof.
Prescription—unlawful means conspiracy added in 2024: Conspiracy was not merely a relabelled fraud case. It requires its own preservation against time bar via section 11(2) and/or section 6(4); those arguments may be advanced at proof.
Prescription—CCA s140B claims: Adopting Smith v RBS, the five-year prescriptive period in Scots law runs from the end of the credit relationship. Claims raised within five years of termination are timeous; otherwise, section 6(4) may still assist.
“Weaker alternative” rule and abuse of process: The defenders may advance alternative positions—no defeat device; if there was, it fell within exemptions; if prohibited, it was inadvertent—without offending the weaker alternative rule or constituting abuse. These are mixed fact-law positions and, at least in part, “esto” arguments.
Disposal: By order, to address whether any averments (notably some negligent misrepresentation items) should be refused probation and to set next procedural steps.

Key issues and holdings distilled

Group proceedings recalibrate “fair notice” and relevance thresholds to reflect mass claims and information asymmetry.
Continuing misrepresentation may defer commencement of prescription under section 11(2).
Induced error under section 6(4)(a)(ii) does not import an “objective reasonable person” test for the debtor’s conduct; diligence remains the objective control.
Unlawful means conspiracy can be founded where unlawful conduct is directed to an identifiable category (consumers) and lacks just cause or excuse.
The Court of Session can determine s140B CCA remedies within group proceedings under s140B(2)(c) and CJJA s22(4).
Mass-market negligent misstatement liability requires (1) factual content about emissions compliance and (2) a transactional inducement context; generalized implied compliance statements by retail and finance entities are insufficient.

Analysis

1) Precedents cited and how they shaped the decision

Group proceedings and pleading: Mackay v Nissan Motor Co Ltd [2025] CSIH 14 emphasises group proceedings’ access-to-justice rationale and streamlined procedure. Lord Sandison relies on this to calibrate fair notice, allowing less granular pleading than would be expected in a single-pursuer action (paras [108]–[111]).
Pleading fraud: Royal Bank of Scotland v Holmes 1999 SLT 563 (specification required for fraud); Richards v Pharmacia [2018] CSIH 31 (fair notice depends on context and what the defender knows); Marine and Offshore (Scotland) Ltd v Hill [2018] CSIH 9 (spec requirements). The court applies these with sensitivity to the information asymmetry in mass delicts (paras [112]–[118]).
Corporate attribution: Meridien Global Funds v Securities Commission [1995] 2 AC 500 vs Lennard’s Carrying Co [1915] AC 705—contextual attribution may extend beyond a single “directing mind” where the policy of the substantive rule (no one should be deceived) warrants it (paras [116]–[117]).
Negligent misrepresentation and assumption of responsibility: Hedley Byrne, Smith v Eric S Bush, Henderson v Merrett, White v Jones, Williams v Natural Life, NRAM v Steel, JP SPC 4, HXA v Surrey. The court synthesizes these to fashion a tailored test for mass advertising: duty depends on factual statements about emissions in a transactional context, aimed at inducing a vehicle acquisition. Mere general availability or implied compliance is insufficient (paras [121]–[127]). Playboy Club v BNL and Caparo inform the limits of responsibility to an indeterminate class and the salience of transactional knowledge (paras [123]–[124]).
Unlawful means conspiracy: OBG v Allan; JSC BTA Bank v Khrapunov; Total Network; Cement LaFarge; WH Newson; Emerald Supplies; CMOC; 4VVV; Racing Partnership; Kidd; Roche Diagnostics. Lord Sandison prioritises principle over English taxonomies, focusing on “just cause or excuse” and direction of unlawful conduct to a category of persons (paras [129]–[139]). Knowledge-of-unlawfulness debates are not determinative in Scots law; what matters is whether the conduct, as deployed, lacks justification (paras [135]–[137]).
Prescription—section 11(2): David T Morrison v ICL Plastics and Gordon’s Trustees; Johnston v Scottish Ministers; Cramaso; GI Globinvestment; Macquarie Generation. The court treats misrepresentation as potentially “continuing” when it remains operative, aligning with contract-avoidance cases that treat representations as continuing until withdrawn or discovered (paras [149]–[156]).
Prescription—section 6(4): Dryburgh (fraud in prescription); Adams v Thorntons (induced error); Heather Capital; Rowan Timber; ANM Group; VFS; Multiplex (and a correction of its “objective reasonable person” test); Highlands & Islands Enterprise (burdens). The court restates a broad concept of “fraud” and clarifies that “conduct” for induced error is a factual question without an objective-person threshold; reasonable diligence remains the objective limiter (paras [159]–[167]).
Adding a conspiracy case late—prescription and amendment: Devos Gebroeder NV (new legal basis out of time); British Railways Board v Strathclyde; J G Martin Plant Hire. The court holds conspiracy is not just a relabelled fraud claim; it must stand or fall under section 11(2) and section 6(4) (paras [170]–[174]).
CCA s140B jurisdiction and prescription: Smith v RBS; Patel v Patel. The court applies Smith to Scots prescription: the cause is continuing until the relationship ends, and the Scots five-year period runs from termination (paras [175]–[176]). On jurisdiction, section 140B(2)(c)’s “other proceedings” and “relevance” are read broadly; CJJA 1982 section 22(4) supplies ancillary jurisdiction (paras [142]–[147]).
Weaker alternative rule and abuse of process: Hope v Hope’s Trs; Smart v Bargh; Haigh & Ringrose; MacPhail. The court approves alternative esto positions where mixed fact-law analyses and fallback defences are involved, and signals a broader process-abuse lens that can address genuinely abusive multiplicity should it arise (paras [177]–[181]).

2) The court’s legal reasoning

a) Fair notice in group proceedings

Lord Sandison emphasises the distinct procedural ecology of group proceedings: they are designed to enhance access to justice, operate under a streamlined regime (RCS 26A), and must accommodate thousands of consumers and information asymmetry. In that setting, “fair notice” can be achieved by summary allegations identifying the alleged false statements, their modes (CoCs; marketing/brochures; dealer and finance materials), and their temporal operation, without granular specification per individual consumer (paras [108]–[117]).

b) Fraud pleading and corporate attribution

While the Holmes line on fraud pleading remains, the court adapts it to the mass context: naming CoC signatories and pleading board/officer responsibility is enough at this stage; the defenders, not the consumers, hold the relevant internal knowledge. Meridien’s contextual attribution suggests liability is not confined to a single “directing mind”, which dovetails with consumer-protection policy (paras [116]–[118]).

c) Negligence: assumption of responsibility for mass-market statements

The court innovates a pragmatic, two-limb test for when mass advertising crosses the Hedley Byrne line into a duty of care:

The statement must contain factual material directly about the vehicle’s emissions compliance (not mere puff or ethos); and
It must be made in a context reasonably aimed at inducing a vehicle acquisition (e.g., sales brochures, point-of-sale materials, adverts targeting purchasers/lessees), so that reliance is reasonably foreseeable and significant.

On this basis, implied representations by a finance provider and retailer are too diffuse to found a negligence duty; but explicit emissions claims by manufacturers/marketers in a transactional context may proceed (paras [125]–[127]). This respects the Playboy/Caparo concern with indeterminate liability while protecting consumers where reliance is invited in a concrete transaction-setting.

d) Unlawful means conspiracy: direction to a category and “just cause or excuse”

The court reframes the analysis around first principles in Scots law (JSC BTA Bank): conspiracy is a primary delict; if the means are lawful, predominant intent to injure is required; if the means are unlawful and directed at the pursuer (or a category including the pursuer), liability turns on whether there is no just cause or excuse (paras [129]–[132]).

Applied here, the alleged combination to disseminate false emissions information is “directed at” an identifiable consumer category (purchasers/lessees of Vauxhall diesels). The required intent may be inferred where harm is the natural and likely consequence for that category when misstatements are the instrumentality of sales. Knowledge-of-unlawfulness taxonomies in English cases are not determinative in Scots law; the central question remains whether the conduct, in context, lacks justification (paras [134]–[137]).

e) Prescription: continuing misrepresentation under section 11(2)

The opinion supplies a significant clarification: section 11(2) is about continuing acts/neglect/default, not continuing loss; it is not limited to situations of continuing damage (paras [149]–[150]). Drawing on Cramaso and cognate authorities, the court treats a misrepresentation about a continuing state of affairs (vehicle compliance) as potentially “continuing” until withdrawn or discovered, because its operative effect persists and the representee may reasonably rely on it until that point (paras [151]–[156]). On the facts, this is a justiciable issue for proof.

f) Prescription: section 6(4) fraud and induced error

For section 6(4)(a)(i) “fraud”, Lord Sandison endorses Dryburgh’s broad, bankruptcy-law sense: deliberate conduct designed to disappoint the creditor’s rights; he suggests “calculated to” may capture the test better than “intended to” (para [161]). For section 6(4)(a)(ii), he squarely rejects a gloss that the conduct must be sufficient to mislead an objective reasonable person (correcting Multiplex’s formulation); it is enough that the debtor’s words or conduct in fact induced the pursuer’s error. The objective control is reserved to the reasonable diligence proviso (paras [163]–[166]). Burdens follow Highlands & Islands: once the creditor properly invokes section 6(4), the debtor bears averment of circumstances engaging the diligence proviso; here that is an evidential question for proof (para [167]).

g) Prescription—post-2018 section 11(3)/(3A)

For vehicles acquired on or after 1 June 2017, the amended section 11(3)/(3A) applies. What a consumer could have discovered with reasonable diligence (in light of “Dieselgate” press) is a mixed fact-law issue to be proved; public-domain reporting is not dispositive per VFS (paras [168]–[169]).

h) Conspiracy added late is not saved as “same obligation”

Unlawful means conspiracy is not merely fraud by another label. It involves different constituent elements; therefore, the later-introduced claim cannot piggyback on earlier fraud averments to avoid time bar. It must find preservation via section 11(2) and/or section 6(4) (paras [170]–[174]).

i) CCA s140B jurisdiction and prescription

Jurisdiction: s140B(2)(c) permits “other proceedings in any court” where amounts paid/payable are relevant. In group proceedings seeking monetary redress for vehicle-related losses, finance payments are relevant to quantifying redress; therefore the Court of Session can decide s140B issues. CJJA 1982 s22(4) independently confers ancillary/incidental jurisdiction (paras [142]–[147]).

Prescription: adopting Smith v RBS (with Scots-law adaptation), the debtor’s cause accrues from day to day until the credit relationship ends; the Scots five-year period runs from termination (Schedule 1 para 1(g)/(h); section 6). Claims brought within five years post-termination are in time; otherwise, section 6(4) may suspend time (paras [175]–[176]).

j) Alternative positions and the “weaker alternative” rule

The defenders’ suite—no defeat devices; if there were, they were within regulatory exemptions; if prohibited, their inclusion was inadvertent—is not impermissibly inconsistent. These are mixed fact-law positions, the inadvertence point is clearly esto, and as defenders they may plead in the alternative without offending substantial justice. The court also signals a broader abuse-of-process jurisdiction that can police truly abusive multiplicity, but it is not engaged here (paras [177]–[181]).

3) Likely impact and significance

Prescription jurisprudence: The treatment of misrepresentations as “continuing” under section 11(2) is a consequential development for economic loss claims involving long-lived representations (product compliance, financial promotions, investment information). Coupled with a clarified, claimant-friendly reading of section 6(4)(a)(ii), it narrows the scope for striking out mass consumer claims at debate on time bar alone.
Group proceedings practice: The recalibrated fair-notice standard acknowledges asymmetry and the infeasibility of individualized pleading across tens of thousands of claims. This will guide Scottish group proceedings across sectors (automotive, financial services, data protection).
Consumer finance litigation: The Court of Session’s jurisdiction over s140B CCA remedies within group proceedings (via s140B(2)(c) and CJJA s22(4)) will streamline mass claims involving finance/lease agreements and avoid fragmented sheriff court litigation.
Advertising liability: The two-limb test refines when mass advertising creates a Hedley Byrne duty in Scotland, focusing on factual content and transactional context. Manufacturers and primary marketers face elevated risk for explicit compliance statements; retailers/financiers face less exposure in negligence absent explicit factual claims.
Conspiracy claims: The emphasis on conduct “directed at” a consumer category as the control mechanism for intent (and the sidelining of knowledge-of-unlawfulness taxonomies) will inform future Scottish conspiracy pleadings, particularly in consumer deception scenarios.
Automotive emissions litigation: The opinion keeps core claims alive to proof (fraud, conspiracy, negligence in part, statutory and CCA remedies), signalling that Scottish Diesel/NOx group claims will be determined on evidence rather than struck out at threshold.

Complex concepts simplified

Defeat device: Any design element that senses parameters (temperature, speed, etc.) to alter emission control effectiveness under conditions expected in normal use. Prohibited unless narrowly justified (e.g., to protect the engine).
Type-approval and Certificate of Conformity (CoC): EU law required vehicles to be approved before sale. A CoC is a manufacturer’s statement to the buyer that the vehicle complies with EU law at production; it is central to purchaser protection.
Group proceedings: A single action managed by a representative party on behalf of many claimants with similar issues, aimed at a single decree covering all claims.
Prescription (time bar): Under the 1973 Act, most obligations prescribe after five years from when the obligation becomes enforceable. Section 11(2) can defer the start if the wrongful “act/neglect/default” is continuing; section 6(4) suspends counting during fraud or induced error, subject to what could have been discovered with reasonable diligence.
Induced error (s6(4)(a)(ii)): The debtor’s words or conduct led the creditor into a mistaken belief that caused them not to sue. The conduct need not fool a hypothetical reasonable person; the focus is on actual induced error. The “reasonable diligence” proviso is the objective filter.
Unlawful means conspiracy: A combination to injure by unlawful means directed at the claimant (or a category including the claimant). Where means are unlawful, liability turns on whether there is no just cause or excuse; intent can be inferred from directing unlawful conduct to a category where harm is likely.
Assumption of responsibility (negligent misstatement): A duty of care arises where a defendant, in circumstances inviting reliance, undertakes responsibility such that it is fair, just and reasonable to impose liability for negligent misinformation. In mass advertising, this requires specific factual claims and a transactional context.
Unfair credit relationship (CCA s140A–B): Courts can grant wide-ranging remedies if a credit relationship is unfair due to terms, enforcement, or other conduct. In Scotland, group proceedings in the Court of Session may determine these remedies where amounts under the agreement are relevant to the main claims.

Conclusion

Batchelor v Opel [2025] CSOH 93 sets multiple consequential markers in Scots private law and procedure:

It clarifies that continuing misrepresentations can defer the start of prescription under section 11(2), aligning misrepresentation’s “continuing” character with well-known contract doctrines and bringing such cases to proof.
It resets the understanding of section 6(4)(a)(ii), rejecting an “objective reasonable person” threshold for qualifying conduct; the objective filter belongs in the reasonable diligence proviso.
It opens the Court of Session’s doors to unfair credit relationship remedies within group proceedings under s140B(2)(c) CCA (and CJJA s22(4)), thereby avoiding fragmented sheriff court litigation and recognising the practical centrality of finance payments to overall redress.
It confines negligent misrepresentation liability in mass advertising to explicit, factual emissions statements made in transactional contexts, but permits fraud and conspiracy to proceed to proof on a pragmatic fair-notice basis.
It reorients the conspiracy analysis toward conduct directed at a category of consumers and the absence of just cause or excuse, rather than fine taxonomies around knowledge-of-unlawfulness.
It confirms defenders may plead alternative mixed fact-law positions without offending the weaker alternative rule.

Collectively, these holdings enhance the justiciability of complex group consumer claims in Scotland, refine the contours of prescription and negligent misstatement in mass-markets, and streamline access to consumer credit remedies. As the case moves to proof (with a by-order hearing to refine any averments to be refused probation), it promises to shape both NOx emissions litigation and the broader architecture of Scottish group proceedings.

Postscript: Procedural next steps

The court will fix a by-order hearing to address whether specific averments—particularly some negligent misrepresentation statements not meeting the two-limb test—should be refused probation, and to settle the procedural roadmap to proof.