Iain Urquhart against Stellantis Auto SAS and others (Court of Session)

Factual and Procedural Background

This opinion concerns group proceedings initiated by the Plaintiff alleging that prohibited defeat devices were installed in diesel engines of certain vehicles manufactured by the Defenders, specifically Peugeot and Citroën models. These devices purportedly reduced the effectiveness of the vehicles' nitrogen oxide (NOx) emissions control systems under normal driving conditions, resulting in loss and damage to group members who purchased or leased the affected vehicles. The Plaintiff seeks a court order under Chapter 26A of the Rules of the Court of Session 1994 to compel disclosure of documents and information from the Defenders to assist in improving the statement of case. The Defenders include multiple corporate entities, some domiciled in France and subject to French law restricting disclosure of certain documents to foreign entities. The matter involves consideration of the appropriate procedure for disclosure, given the interplay of domestic court rules, foreign law (notably the French Blocking Statute), and international conventions governing evidence gathering.

Legal Issues Presented

1. Whether the court should grant an order requiring the Defenders to disclose documents and information relevant to the design, manufacture, emissions control systems, recalls, and software updates of specified vehicle models under the group proceedings rules.
2. How to reconcile the disclosure order with the application of the French Blocking Statute (Law No 68-678 of 26 July 1968) which prohibits certain disclosures by French entities to foreign authorities and persons.
3. Whether alternative procedures under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970) provide a suitable method for document recovery that respects foreign law and comity.
4. The appropriate balancing of the risk of prosecution under foreign law against the need for disclosure in domestic proceedings, including the relevance of the "real risk of prosecution" test.
5. The court’s discretion in appointing a commissioner under Scottish law to facilitate document recovery abroad, including the qualifications and role of such a commissioner.

Arguments of the Parties

Defenders' Arguments

• The request for documents relating to four vehicle models is excessive and should be limited to two models, as in analogous prior litigation, to avoid disproportionate burden.
• Documents concerning recall notices have already been produced; further production is unnecessary.
• The French Blocking Statute prohibits the first, second, third, and ninth Defenders (French domiciled) from disclosing the requested documents directly, exposing them to real risk of prosecution in France.
• Alternative document recovery routes under the Hague Convention (either by letter of request or appointment of a commissioner) comply with judicial comity and avoid breaching French law.
• There is no absolute bar to disclosure, but the risk of prosecution is a fundamental factor the court must consider in exercising discretion.
• The Defenders are willing to cooperate with document recovery via the Hague Convention route voluntarily.
• The cost of appointing a commissioner and any related delays are reasonable given the circumstances and should initially be borne by the affected Defenders.
• Experience in other European jurisdictions supports the use of international legal instruments to overcome the restrictions imposed by the French Blocking Statute.

Plaintiff's Arguments

• The request for documents relating to four vehicle models is justified because the first Defender designed and manufactured engines for both Peugeot and Citroën vehicles, and the second and third Defenders are responsible for manufacturing and certification of Peugeot and Citroën vehicles respectively.
• The Plaintiff does not seek production of the recall notices themselves but documentation showing the nature of those recall notices.
• The decision in Joshua v Renault SA is persuasive and supports the view that there is no real risk of prosecution under the French Blocking Statute sufficient to bar disclosure.
• The Defenders have not tendered expert evidence to substantiate the asserted real risk of prosecution.
• International courts, including English, Australian, and US courts, have adopted similar approaches favoring disclosure despite the existence of the French Blocking Statute.
• The Plaintiff urges the court to grant the order sought, consistent with prior decisions in Batchelor v Opel Automobile GmbH and Joshua v Renault SA.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the wide powers granted under the group proceedings rules to order disclosure of documents relevant to the dispute. It considered the scope of the Plaintiff’s request and found the inclusion of four vehicle models justified by the Defenders’ respective roles in design and manufacture. The court rejected the objection to paragraph 4(a) of the document list, which sought documents showing the nature of recall notices, on the basis that the Plaintiff already possessed the notices themselves and the nature of additional documents was unclear.

The court then addressed the challenge posed by the French Blocking Statute, which prohibits French entities from disclosing certain economic and technical information to foreign parties, under threat of criminal penalties. It reviewed relevant English authority, particularly the Joshua decision, which held that a "real risk of prosecution" must be established before the court balances that risk against the need for disclosure. However, the court distinguished Scots law as taking a more holistic and proportional approach, not requiring a threshold of real risk before balancing interests.

The court accepted that compliance with a direct order for production by the affected French Defenders would prima facie breach the French statute, but noted that no evidence was presented to establish the likelihood of prosecution or availability of defenses. It considered alternative procedures under the Hague Convention, specifically the Chapter II route involving appointment of a commissioner to obtain documents in France with approval from French authorities. This route was found to be practical, respectful of foreign law and comity, and not unduly costly or delayed.

The court concluded that the balance favored requiring the affected Defenders to comply with document recovery via the Hague Chapter II process rather than by direct order. It accepted that appointment of a commissioner, potentially a Paris-based lawyer with experience in Hague Convention procedures, was appropriate and within the court’s powers under Scottish law. The court also noted that the other Defenders, not subject to the French statute, could be ordered directly to produce documents with a rolling progress reporting mechanism.

Finally, the court reflected on the role of comity, emphasizing that while the risk of foreign prosecution is a relevant consideration, it is not determinative. The court must exercise its discretion to ensure fair disposal of proceedings while accommodating legitimate foreign legal interests where possible.

Holding and Implications

The court GRANTED the Plaintiff’s motion in part, ordering the following:

• Direct production orders in normal form will be made against the Defenders not subject to the French Blocking Statute, with no fixed deadline but requiring rolling progress reports every 28 days.
• For the Defenders subject to the French Blocking Statute, the court will not impose a direct production order due to the risk of breaching French criminal law. Instead, the parties will be invited to propose the identity of an appropriate commissioner and address practical issues to commence document recovery under Chapter II of the Hague Convention as soon as possible.

The implications are that the court balances the need for effective disclosure with respect for foreign legal restrictions and comity. The decision does not set a new precedent but clarifies the application of Scots law principles in cross-border disclosure disputes involving foreign blocking statutes and endorses the use of international conventions as a procedural mechanism. The ruling ensures that document recovery proceeds in a manner that mitigates legal risk to the parties while facilitating fair resolution of the group proceedings.