TfL Ref: EIR-2429-2425
Thank you for your request of 30th October 2024 – as clarified on 4th November 2024 – asking for information about “Dieselgate” litigation.
Your request has been considered in accordance with the requirements of the Environmental Information Regulations (EIRs) and our information access policy.
Specifically you asked:
“We act for entities in the Renault Group (“Renault”) in proceedings in the High Court of England and Wales, namely, Thomas John Joshua and Others v Renault S.A. and Others (Case number: QB-2021-004141 and others), in which certain Nissan entities are also parties. These proceedings arise in the context of the wider so-called “Dieselgate” litigation in England and Wales. This wider “Pan-NOx” Emissions Group Litigation includes claims brought against Mercedes-Benz (Case number: QB-2022-002405 and others), Ford (Case number: QB-2021-002678 and others) and Peugeot, Citroën and DS (Case number: QB-2021-002286 and others) (collectively, the “Proceedings”). The law firms acting for Claimants in the Proceedings includes PGMBM Law Ltd (trading as Pogust Goodhead), Leigh Day and Milberg London LLP (the “Claimant Firms”).
Pursuant to FOIA, please provide electronic copies of any information (including but not limited to printed documents, computer files, letters, emails, other correspondence, reports, internal notes, memoranda, photographs and sound recordings) in relation to any communications or discussions between Transport for London and any of the Claimant Firms. The request is made for any information sent, received, created or edited since 1 June 2024.”
On 4th November 2024 you clarified that:
“Without prejudice to any additional but related requests, we confirm that this request can be treated as in relation to the three Claimant Firms identified in your email and to the so-called “Dieselgate” cases only.”
I can confirm that we hold the information you require. However, the requested information is excepted from release under Regulation 12(5)(b) of the EIRs (the ‘course of justice and inquiries’ exception) on the basis of legal professional privilege (LPP). LPP exists to ensure complete fairness in legal proceedings. ICO guidance states that Regulation 12(5(b) of the EIRs covers information protected by legal professional privilege and points to the following guidance in relation to the equivalent exemption under the Freedom of Information Act, which states that:
“Litigation privilege applies to confidential communications made for the purpose of providing or obtaining legal advice about proposed or contemplated litigation. There must be ongoing litigation or a real prospect or likelihood of litigation, rather than just a fear or possibility. For information to be covered by litigation privilege, it must have been created for the dominant (main) purpose of giving or obtaining legal advice, or for lawyers to use in preparing a case for litigation. It can cover communications between lawyers and third parties so long as they are made for the purposes of the litigation.”
The guidance further states that:
“The general public interest inherent in this exemption will always be strong due to the importance of the principle behind LPP: safeguarding openness in all communications between client and lawyer to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice.”
TfL sees no wider public interest in the information being disclosed and, in line with the above statement, believes the greater public interest rests in the exception applying and the information being withheld.
Please see the attached information sheet for details of your right to appeal.
Yours sincerely,
David Wells
FOI Case Officer
FOI Case Management Team
General Counsel
Transport for London
