Jaguar Land Rover is among many car makers facing allegations that some of its diesel engines have ‘defeat devices’, enabling them to fool emissions tests by creating lower emissions in a lab test than in 'real world' driving. The claims are reminiscent of the ‘dieselgate’ scandal which has cost the Volkswagen Group over €33billion.
Law firm Leigh Day is currently representing around 1500 Land Rover owning claimants (and rising) in England and Wales, and believes around 365,000 Jaguar Land Rover vehicles could be affected in the UK. All diesel Land Rovers registered from September 2009, when Euro 5 came into effect, are potentially eligible.
The claim rests on various reports that in ‘real world’ driving, many Euro 5 and Euro 6 engines produce excessive NOx emissions, far above the legal thresholds. Engine software used to manipulate emissions during testing was deemed illegal by the European Court of Justice in December 2020 (unless employed to prevent immediate engine damage), prompting a renewed flurry of lawsuits against manufacturers.
Oliver Holland, Partner at Leigh Day, said that although the proceedings could last three years, it is hoped that manufacturers such as Land Rover will opt to pay compensation to vehicle owners sooner, to prevent the case going to trial in the High Court. ‘We’ll be engaging in dialogue with the defendants first. Assuming they’re going to fight it, then after various procedural steps we’ll be issuing the case in the High Court. It’s likely to be two or three years before it goes to trial – but we would hope that it wouldn’t go that far.’
Responding to the claims, JLR has said: 'Jaguar Land Rover has not yet seen any technical evidence in relation to this matter. We will strongly contest any claims made by the no win-no fee legal firm. Jaguar Land Rover does not use emissions cheat devices or software in any of its products.'
What's the counter claim?
Land Rover is keen to highlight the Department for Transport's assertion in 2016 that 'Importantly our testing has found no evidence that other manufacturers are using software of the type used by Volkswagen.'
However, the DfT has also highlighted marked discrepancies between real-world emissions and lab emissions, and described one means of achieving this (using apparently legitimate EGR strategies) as 'a defeat device by another name'.
In late 2015, the DfT funded a vehicle Emissions Testing Programme (ETP) in response to the VW diesel gate scandal. All the cars tested produced higher NOx emissions on the road than in a lab, although: 'The ETP did not detect evidence that any other manufacturer had used the same test cycle manipulation strategy as VW.'
The NOx emissions of a Euro 5 Freelander 2 (engine unknown) were nearly 1200mg/km, rather than the legal limit go 180mg/km.
Have regulatory authorities turned a blind eye?
A 2016 report by Transport and Environment (an NGO funded by Transport for London, the European Commission and others) claims that many countries’ regulatory bodies have acted with poor integrity when it comes to defeat devices.
It says: ‘Carmakers “shop around” for the best offer from the regulators that compete among themselves for type approving business. Some, for example approval authorities KBA in Germany, CNRV in France and MIT in Italy, protect their national carmakers and shy away from scrutinising them too strictly. Others, like the VCA in the UK, RDW in the Netherlands or SNCH in Luxembourg see type approval as a lucrative business.’
Could car makers theoretically undo a cheat device via SOTA updates, without the owner knowing?
Probably not, although Software Over The Air (SOTA) updates are becoming more mainstream for an increasing number of vehicle systems. At its launch, the new Defender contained 16 electronic modules capable of SOTA updates, a number which has been projected to rise to 45 by the end of this year. Modules currently capable of SOTA updates in the new Defender include accelerator and transmission modules.
Which vehicles are eligible for a claim?
Leigh Day is investigating all diesel Land Rovers registered since 1 September 2009, purchased within England and Wales.
If you bought your Land Rover in Scotland, your claim will need to go through the Scottish courts, so you will need to hire a Scottish law firm (not Leigh Day, who recommend you contact the Law Society of Scotland for advice).
You may be eligible to claim whether you bought your vehicle second-hand or new, and it does not matter who you bought the vehicle from. Company cars are also eligible, as are leased vehicles, if the lease is in your name.
In 2019, JLR recalled 44,000 vehicles in the UK – mostly 2.0-litre Land Rover models – due to excessive CO2 emissions. That will be just the tip of the iceberg if these investigations into defeat devices conclude in the claimants’ favour…