Robert, all

At the risk of talking at cross purposes, the Irish Act does not
contain a provision in any way similar to Paragraph 27(a) to which you
refer.

Nor, by contrast, does it expressly state that a consumer can bring a
claim against a trader with whom they have not contracted. However, my
reading of the CPA is that they can. I think that flows from the
definitions of Trader, Consumer and Transactional Decision in Section
2 of the CPA and from the way in which Unfair, Misleading Aggressive
and Prohibited Commercial Practices are respectively defined.

I also think the Irish approach on this point is better.

Putting aside Martin's interesting (if difficult) hypothetical case
for a moment, it is surely right that if I buy a diesel engine VW from
an independent distributor, I should have a claim against VW, even
though I did not contract with them because of their misstatements.

No doubt, it can be said against that that there are common law claims
I could bring but since these are predominantly consumer claims, the
simpler and clearer the law is the better and I at least think the
statute plays an important part there.

Returning to Martin's hypothetical, the short answer to your argument
that it would be wrong to grant him recovery because he has not been
wronged comment is that, if Martin can prove that the average consumer
would have wanted to know (or perhaps should have been told) the
information in question and that the information in question would
have been likely to influence the average consumer's decision to buy
the car, then he has been wronged.

That is so, even if he frankly admits that he does not care and would
not have cared about the information in question. The wrong that has
been done to him is that he has been deprived of the opportunity to
make his decision that he does not care, in possession of the full
facts.

In protecting Martin's right to decide, the law can also be seen as
performing a deterrent role here, which is in no way foreign to
private law generally (think of innocent breaches of fiduciary duty or
other equitable obligations a la Bordman v Phipps) or the law of tort
in particular (especially the trespassery torts). It is no answer to a
claim for damages to trespass to land that your trespass did no harm -
clearly it goes to quantum but that is very different.

Claim

On the actual claim itself, I incline more and more to agree with
Hector in thinking that one would struggle to persuade a Court that
the average consumer of a petrol VW would have cared about emissions
tests on completely different cars before this story broke.

Query what the information which VW should have disclosed would have
been, would it have been:

1. We have certain cars which do not in fact meet emissions tests; or
2. We have certain cars in respect of which (as I understand it and I
am open to correction on this and put it up there purely as a
hypothetical) we have in some way faked emissions tests, thus calling
our reliability as a car manufacturer into question.

If point 2 (and again I stress I am in no way imputing 2 above to VW
in fact) is the average consumer's concern about the reliability of VW
generally relevant?

Kind regards

Ger


On 9/24/15, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
> I suspect that martin is out of luck because he had no contract with the
> trader (ie VW) nor made any payment to them (which the UK Regs require.) See
> para 27A(2)
>
> If he has, I think he has a claim. Which in principle is wrong as he himself
> has not been wronged. There is no requirement under the Regs that you have
> yourself been misled. The kind of lazy transposition of public regulatory
> duties into private law that we should deprecate.
> ________________________________________
> From: Gerard Sadlier [gerard.sadlier@gmail.com]
> Sent: 24 September 2015 12:10
> To: MACQUEEN Hector
> Cc: Robert Stevens; Kleefeld, John; Eoin O'Dell; HOGG Martin;
> obligations@uwo.ca
> Subject: Re: Volkswagen and breach of contract/tort
>
> Hi,
>
> I haven't read the UK Regulations in detail but based on the Irish
> legislation (which in these respects transposes the UCP) I think
> claims would be possible on the bassis that the faked emissions tests
> were unfair or misleading commercial practices.
>
> I accept that to prove this, one would need to prove both that the
> lack of information concerning the faked tests on cars sold by the
> same company would be likely to:
>
> (i) cause appreciable impairment of the average consumer’s ability to
> make an informed choice in relation to the product concerned (the
> petrol engine VW), and
>
> (ii) cause the average consumer to make a transactional decision
> that the average consumer would not otherwise make (concerning a
> petrol engine VW).
>
> That might be hard to do. It seems to be a mixed question of fact and
> law - are faked emissions tests on sister products matters about which
> the average consumer cares and which would be likely to affect their
> transactional decisions.
>
> Kind regards
>
> Ger
>
> On 9/24/15, MACQUEEN Hector <Hector.MacQueen@ed.ac.uk> wrote:
>> However, in the UK the Unfair Commercial Practice Directive has been made
>> civilly enforceable by the Consumer Protection (Amendment) Regulations, SI
>> 2014 No 870, accessible here -
>> http://www.legislation.gov.uk/uksi/2014/870/contents/made.<http://www.legislation.gov.uk/uksi/2014/870/contents/made>
>> That said, I don't see them giving Martin a cause of action against
>> Volkswagen.
>>
>>
>> Hector
>>
>>
>> Hector L MacQueen FBA FRSE
>>
>> Professor of Private Law
>>
>> University of Edinburgh Law School
>>
>> Old College
>>
>> South Bridge
>>
>> Edinburgh EH8 9 YL
>>
>>
>>
>> Currently working at the Scottish Law Commission tel (0)131-662-5222
>>
>>
>> ________________________________
>> From: Robert Stevens <robert.stevens@law.ox.ac.uk>
>> Sent: 24 September 2015 11:23
>> To: Kleefeld, John; gerard.sadlier@gmail.com
>> Cc: Eoin O'Dell; HOGG Martin; obligations@uwo.ca
>> Subject: RE: Volkswagen and breach of contract/tort
>>
>> 1. Deceit is an interesting issue.
>>
>> Now, my understanding of deceit is that the claimant must have been
>> deceived. So it would not be enough to show that you have been left worse
>> off as a result of deceit if you yourself have not been deceived. The gist
>> of deceit is being deceived, not suffering loss.
>>
>> However, I don't off the top of my head know of any Commonwealth authority
>> standing for that proposition, or the opposite (there is US authority, but
>> there is US authority for most legal propositions.)
>>
>> Anyone?
>>
>> 2. The Directive Gerard mentioned is here
>>
>> http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:EN:PDF
>>
>> See art 11 on enforcement.
>>
>> I am very unhappy with public law regulatory duties simply being
>> transposed
>> into enforceable private law rights, but the Directive doesn't require
>> that.
>>
>> RS
>> ________________________________
>> From: Kleefeld, John [john.kleefeld@usask.ca]
>> Sent: 24 September 2015 00:12
>> To: gerard.sadlier@gmail.com
>> Cc: Eoin O'Dell; HOGG Martin; obligations@uwo.ca
>> Subject: Re: Volkswagen and breach of contract/tort
>>
>> Colleagues: Here is a link to an article about the class action that has
>> just been filed in Alberta, Canada:
>>
>> http://edmontonjournal.com/news/local-news/billion-dollar-lawsuit-filed-in-edmonton-against-volkswagen-canada
>>
>> And here is a link to the plaintiff firm’s web page, which includes a link
>> to the statement of claim:
>>
>> http://www.jameshbrown.com/volkswagen-class-action---canada1.html
>>
>> (You can also get there via
>> www.volkswagenclassaction.ca<http://www.volkswagenclassaction.ca>; it will
>> redirect you to the firm’s website.)
>>
>> John Kleefeld
>> Associate Professor, College of Law
>> University of Saskatchewan
>> 15 Campus Drive
>> Saskatoon SK Canada S7N 5A6
>>
>> tel: (+1) 306.966.1039
>> email: john.kleefeld@usask.ca<mailto:john.kleefeld@usask.ca>
>> skype: johnkleefeld
>> web: http://law.usask.ca/find-people/faculty/kleefeld-john.php
>> award:
>> http://www.stlhe.ca/2015-brightspace-innovation-award-in-teaching-and-learning-winners/
>>
>>
>>
>>
>>
>>
>> On Sep 23, 2015, at 2:35 AM, Gerard Sadlier
>> <gerard.sadlier@gmail.com<mailto:gerard.sadlier@gmail.com>> wrote:
>>
>> Hello
>>
>> I wonder whether you would potentially have a cause of action under
>> the Unfair Commercial Practices Directive? Certainly in Ireland, by
>> virtue of Section 74 of the Consumer Protection Act 2007 (the act
>> which transposed the directive into Irish law) an unfair, misleading
>> or prohibited commercial practice is actionable in damages, including
>> aggravated and exemplary damages, subject to certain exceptions.
>>
>> To be honest I am not sure if that right to damages is found in the
>> directive or was national gold plating (I suspect the latter) and I do
>> not know if there is an equivalent right in the UK transposition for
>> example.
>>
>> http://www.irishstatutebook.ie/eli/2007/act/19/section/74/enacted/en/html
>>
>> Kind regards
>>
>> Ger
>>
>> On 9/23/15, Eoin O'Dell <ODELLE@tcd.ie> wrote:
>> Dear all
>>
>> The claim in the U.S. class action suit is here, FWIW:
>> http://cliffordlaw.com/wp-content/uploads/2015/09/Dorn-Haralovich-v-Volkswagen.pdf
>>
>> Eoin
>>
>> ———————————————
>> Dr Eoin O'Dell
>> School of Law, TCD
>>
>> +353 87 202 1120 (m)
>>
>> Sent from my iPhone
>> ———————————————
>>
>> On 23 Sep 2015, at 08:11, HOGG Martin
>> <Martin.Hogg@ed.ac.uk<mailto:Martin.Hogg@ed.ac.uk>> wrote:
>>
>> Dear all,
>>
>> I am the owner of a Volkswagen Polo. It is not one of the diesel ones
>> which
>> are being recalled because of allegedly falsified emission tests.
>> Nonetheless, it is a car tarnished by having a VW badge on it. When I come
>> to sell it, I may well find that I get less for it than I might otherwise
>> have, because of general reputational damage caused to the brand by VW’s
>> (it
>> would appear) fraudulent practices. I wonder whether circumstances such as
>> these might trigger a damages claim against VW by owners of cars in my
>> position. Breach of contract might found the basis (though for breach of
>> what term? Contracts for the purchase of a car don’t import, I imagine, an
>> implied term of mutual trust and confidence, such as arises in employment
>> contracts, and founded “stigma damages” in the Malik v BBCI case), but I
>> doubt that a tortious/delictual claim would arise (given the potentially
>> huge number of claimants affected by the pure economic loss suffered,
>> albeit
>> that any of them who directly bought their car from VW would be in a
>> proximate relationship by virtue of the contractual relationship). I’d be
>> interested to hear anyone’s thoughts on this. (I’m not actually thinking
>> of
>> suing VW, as my intention was to drive the car for a number of years until
>> it basically gave up, so my musings on the subject are purely
>> hypothetical).
>>
>> Best wishes,
>>
>> Martin
>>
>> Professor Martin A. Hogg
>> Edinburgh Law School
>> --
>> The University of Edinburgh is a charitable body, registered in
>> Scotland, with registration number SC005336.
>>
>>
>>
>>
>