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Briefing

High Court declines to order disclosure of foreign pleadings in the context of multi-jurisdictional litigation

The High Court, in Crossley and others v Volkswagen AG and others, has recently declined to order the disclosure of submissions and pleadings in foreign proceedings.

The Claimants had sought disclosure of Klageerwiderungen (German law statements of defence) in four sets of proceedings in Courts in Germany.  The four German Court judgments had been cited by one of the experts instructed in respect of German administrative law issues. The Defendants had resisted disclosure.  Freshfields acted for the Defendants.

The Claimants asserted inter alia that an order for disclosure should be made on the basis that it would assist the High Court in understanding the judgments ultimately rendered by the German Courts.  In particular, it was said that the Klageerwiderungen would enable the Court to better understand how the Defendants had put their case in those foreign proceedings. That was said by the Claimants to be of relevance because they took the view that the German cases involved materially identical disputes to those before the High Court. It was also noted that German judgments tended to be shorter than those handed down by English Courts and, as such, would not necessarily set out the arguments of the parties. 

The Defendants, meanwhile, had argued against an order for disclosure being made on the basis that:

  • To the extent that the High Court wished to have regard to the decision of a foreign court, it could do so by reference to that Court’s publicly available judgment. The length of the German Court’s judgment did not in any way impede that process from occurring. 
  • Klageerwiderungen are not generally publicly available documents. As such, the Klageerwiderungen had not been seen by the expert that had cited the resulting judgment (and  a joint statement had already been prepared by the parties’ respective experts). 
  • It was not open to the Defendants to disclose unilaterally their opponents’ Klageerwiderungen in the German proceedings, given that such pleadings are not made public. As a result, to the extent that the Klageerwiderungen could provide context, it would be limited to providing only one party’s view as to the case that it wished to make in those individual proceedings. 

The High Court agreed with the Defendants and declined to make an order for disclosure.  The Court took the view that the only real utility of the Klageerwiderungen would be in circumstances where it could be said that the German Courts’ judgments were not clear and the Klageerwiderungen were thus necessary to understand what was being said by the German Courts.  That submission had not been made by the Claimants.  To seek to investigate beyond the German Courts’ judgments was regarded as “a step too far”. 

Defendants engaged in multi-jurisdictional litigation are likely to welcome the decision.  A decision to order disclosure would have caused concern about the potential for private submissions made in foreign law proceedings to become public via English proceedings.

Freshfields is advising Volkswagen in a number of jurisdictions on civil and regulatory issues concerning its diesel engines, and allegations as regards NOx emissions.