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NOx Emissions Group Litigation: no risk of prosecution under the French Blocking Statute


The High Court (Cockerill J) has rejected the application of various French defendants (Peugeot/Citroën and Renault) that their disclosure in the Nox litigation should be given through a Hague Commissioner, in order to avoid the risk of prosecution under the French Blocking Statute of 1968 (FBS).

The Judge found that that there was no real risk of prosecution. The Defendants said there were a number of factors that set this case apart from earlier cases in which the English court had held there was no risk of prosecution of French parties under the FBS, including recent reforms to increase the effectiveness of the FBS, the French regulator referring the matter to the public prosecutor, the French prosecutor opening an investigation and the French police issuing summonses for employees of the Defendants to attend interviews. In the Judge’s view, if the French prosecutor was made aware of all the circumstances of the case, including the reasons why direct disclosure was preferable to the Hague Convention route he/she could be expected not to prosecute.

Cockerill J also concluded that even if there had been a real risk of prosecution, she would have exercised her discretion to refuse the appointment of a Hague Commissioner.  Although the current disclosure could be provided through the Hague Commissioner without disruption to the case, significant weight should be given to the fact that a prosecution of the Defendants would be a breach of comity by the French prosecutor.  The Judge also considered that issues of delay, cost and disruption were likely to loom larger as the disclosure exercise progressed.

The judgment is here.

Maya Lester KC and Paul Wright acted for the Peugeot/Citroën Defendants, instructed by Kennedys Law LLP.