Lawyers looking to sue Mercedes-Benz on behalf of UK owners over the emissions scandal say its latest recall of more diesel vehicles for a software update shows it knows it has a larger dirty diesel problem here.
London law firm Fox Williams LLP and US class-action law firm Hagens Berman are building a group claim in England and Wales alleging the Daimler subsidiary was deliberately involved in emissions fraud with the sale of its diesel and BlueTec vehicles.
They say the manufacturer programmed an emission defeat device during test conditions that limited illegally high and dangerous levels of nitrogen oxide (NOx) that would otherwise be emitted in real-world driving conditions.
Hagens Berman investigated a similar case in the US and led a class action lawsuit there that has paid out more than $700m to US Mercedes owners.
It has also been involved in litigation against Volkswagen in the US, where it was found that a comparable defeat device was used, with the firm again also winning compensation for vehicle owners.
Since 2018, the German federal motor transport authority (KBA) has told Daimler to carry out recalls of diesel Mercedes-Benz vehicles in Europe to carry out an emissions-related software update, say Fox Williams and Hagens Berman.
They now say that following an order by the KBA in August 2020, Daimler has added a lengthy list of models to the recall exercise.
Mercedes-Benz sent recall notices to UK Mercedes diesel vehicle owners on September 4, saying an engine control unit software update was needed to help ‘further reduce the average nitrogen oxide emissions while driving on the road’.
Fox Williams partner Andrew Hill said: ‘This latest recall exercise is yet further compelling evidence Mercedes diesel and BlueTec vehicles have a nitrogen oxide problem that needs fixing.
‘Any UK vehicle owners that have the software repair are still eligible to join our claimant group.’
Michael Gallagher, co-managing director of Hagens Berman UK, added: ‘The fact Mercedes is doing this at the instruction of the German transport authority is telling.
‘Of further note is the scope of the recall. We believe Mercedes is developing software updates for almost the entire Euro 6b and Euro 5 diesel fleet in Europe.’
He added: ‘We absolutely don’t accept Mercedes’ argument that the emissions control system of US vehicles is materially different to European models.’
Earlier estimates suggested there could be some 1.2 million potential claimants in England and Wales, but the legal firms say it could be higher.
Not only private owners and businesses such as fleet operators and hire car companies, but also lessees may be eligible for damages.
Hill said: ‘We believe Mercedes vehicle owners and lessees in England and Wales will likely have good claims for losses caused to them from unwittingly owning or leasing dirty diesels.
‘Compensation could be in the range of £5,000 to £10,000 per vehicle.’
The group action will be on a no-win, no-fee basis.
In response, a spokesperson for Mercedes-Benz UK told Car Dealer: ‘We believe the claims brought forward by the UK law firms are without merit, and will vigorously defend against them or any group action.
‘Our vehicles have a valid certification according to EU regulations and we believe that the functionalities in question are justifiable from a technical and legal standpoint.
‘With regard to the US settlement, the vehicles in question were produced exclusively for the North American market.
‘The emissions control system of US vehicles differs in comparison to vehicles in Europe both with respect to hardware components and configuration of the control software.
‘In addition, the legal framework and the certification process in the US is different to that in Europe.
‘The settlements in the US resolve the company’s pending civil proceedings with the US authorities without reaching any determinations as to whether the functions in Daimler’s vehicles are defeat devices.
‘As stated in the consent decrees and the class action settlement, the company denies the authorities’ allegations and the class action plaintiffs’ claims and does not admit any liability to the United States, California, plaintiffs or otherwise. Also the consent decrees do not allege that Daimler committed fraud.
‘Since 2017, through advances in technology and know-how, and in consultation with the German federal motor transport authority, we have voluntary been performing software updates across our Euro 6b and Euro 5 diesel vehicles to further reduce NOx emissions in Europe, including the UK.
‘Daimler has also been carrying out mandatory recalls related to diesel emissions, in which software updates are being installed, pursuant to an administrative order by the KBA.
‘Daimler is appealing against these recall notices and these objection proceedings are ongoing. We publish all diesel recalls on https://www.daimler.com/innovation/drive-systems/diesel/recalls-overview.html.‘