ANTHONY JOSEPH CHAMPION CROSSLEY & ORS v (1) VOLKSWAGEN AKTIENGESELLSCHAFT [2021] EWHC 3444 (QB)

"In causing or permitting the affected Vehicles to be registered and/or put into service and/or sold, with the benefit of COCs in respect of the affected Vehicles (a publicly known practice), in circumstances in which the respective Volkswagen, Audi, Seat and Skoda brands had been signed up to and/or become bound by the New Car Code), (whether (a) directly by the First to Fourth Defendants as "manufacturers" under Regulation 27A(5)(a) of the CPUT Regulations, or (b) indirectly via any companies within the Volkswagen Group acting as their respective UK official importers, distributors, marketeers or as otherwise authorised to act in the name of the First to Fourth Defendants or on their behalf and so amounting to "producers" within the balance of Regulation27A(5)of CPUT, including but not limited to VWUK, and/or by VWUK itself becoming a signatory to the New Car Code on behalf of traders (including the Fifth to Seventh Defendants) within the meaning of regulation 2 of CPUT) and in which they made the statements set out In paragraph 59 above, each manufacturer of the affected Vehicles made the following representations (the Representations): 63.1. The vehicles complied with all statutory and regulatory requirements imposed by EU and UK law (including the Emissions Regulations, the Testing Regulations and the Euro 5 limits). 63.2. All requisite testing had been properly and honestly carried out to establish that compliance; and EC Type Approval, and all necessary consents, licenses and registration had been properly and honestly obtained without any misrepresentation to the regulators from whom they were obtained. 63.3. The vehicles were fit to be lawfully sold, registered and put into service in the UK or any other Member State of the European Union. 63.4. The vehicles did not incorporate prohibited or illegal components; and did not incorporate devices preventing the proper and accurate testing and recording of their emissions. 63.5. The vehicles did not require modification in order to meet relevant emissions standards. 63.6. The Manufacturer Defendants honestly believed 63.1 to 63.5 above to be the case."

"As intended by the Manufacturer Defendants, purchasers of the affected Vehicles (including the Claimants) were induced to buy or lease them by the Original Representations. But for the Original Representations, and their belief in the truth of them, no Claimant would have purchased or leased an affected Vehicle. Specifically, no Claimant would have done so if he or she had known that: 68.1. EC Type Approval, and hence legality for supply, sale and operation of the vehicle within the European Union, had been obtained through fraudulent means. 68.2. The vehicle contained a defeat device (whether or not as defined in the Emissions Regulations) which was intended to cheat, and had cheated, the emissions testing regime, and ensured that the vehicles produced less pollutants when being tested than in road use. 68.3. The vehicle would require future modification in order to meet relevant emissions standards."

"Further, it is noted and averred that the Claimant does not plead that any relevant representations, including any of the Original Representations, were made to him, or otherwise came to his knowledge, prior to entering into the Agreement. That is, the Defendants infer, because they did not do so. Accordingly, it is denied that the Claimant relied on the Original Representations or any representations relevant to the Claimant's allegations."

"As pleaded in paragraph 9 of the Claimant's particulars of claim, the Original Representations were made to the Claimant before he entered into the contract, he was aware of them, and they were relied upon by him. The circumstances in which the Original Representations were made are already set out in paragraphs 63 and 64 of the GPOC."

"26… I do not understand the statement Mr Blain makes that " not a single Claimant pleads active or conscious awareness and understanding of the Original Representations" (Blain 21 at Paragraph 45). That is demonstrably wrong. Each and every one of them does so, expressly, using the term "aware"… On the Defendants' own terms as to what the alleged failing in the Claimants' case is (awareness is required and must be pleaded) the defendant's application must therefore fail… 27. The Claimants' pleas are homogenous-or generic-because they are based on general implied representations from very general conduct (putting the Vehicles on the market). It is unsurprising that all the Claimants rely on the same representations and positively assert that they were aware of them. 28. Without waving privilege in relation to the communications, the Steering Committee has had with its clients, I can confirm that each of the Lead Claimants read their Individual Reply and either signed themselves or confirm that they gave permission for their retained solicitors to sign it on their behalf. Accordingly, their clear instructions are that they were aware of the Original Representations at the time of acquiring their Vehicles. That is their (unqualified) pleaded case… 35… I can be very clear that if any of the criticisms of the pleadings are upheld, then (subject to further instructions) the other approximately 90,000 claimants will be pleading awareness up front in their IPOCs."

"1. Does each Lead Claimant allege that, at the time each acquired their vehicles, they were actively and consciously aware of and understood each individual pleaded representation? For the avoidance of doubt, the Defendants are asking whether each Lead Claimant alleges they actually turned their mind to, gave conscious thought to and understood each pleaded representation at the time they acquired their vehicles? Active and conscious awareness is to be contrasted with assuming (but without actually consciously considering and understanding) that the matters represented were true… 3. Mr Pope's 33rd witness statement [at paragraph 35] states that "

"the Lead Claimants have already adequately particularised their plea of reliance on the representations in the…GPOC in their Individual Replies by virtue of their plea that they were "aware of" the representations. Adopting the Defendants dichotomy, this indicates that the Lead Claimants were actively and consciously aware of the representations, in contrast with assuming (but without actually consciously considering and understanding) that the matters represented were true. Hence Mr Pope's 33rd witness statement at paragraph 26 [see above]. The appropriate time for further exploration of the Lead Claimant state of mind is in evidence… awareness …is the same term pleaded by the Lead Claimants; (ii) the ordinary meaning of "awareness" is [t]he quality or state of being aware, consciousness…(iii) awareness of a representation… is clearly distinct from assumption of truth of the matters represented without reference to any representation… Particulars of the inducement pleaded in the GPOC have not yet been ordered… It is plainly likely that most or all of the non-Lead Claimants will plead awareness given that all of the Lead Claimants (when asked to particularise their reliance) did so."

"1. I am a Solicitor of the Senior Courts of England & Wales, and a Partner at the firm Leigh Day. I have responsibility for the conduct of the Volkswagen NOx Emissions claim for the clients of this firm. Leigh Day are Lead Solicitors in the claim, together with Slater and Gordon UK Limited. 2. Of the 20 Lead Claimants, the following 7 are clients of Leigh Day: Mrs Victoria Smith, Mr Maciej Kudanowski, Mr Keith Clarke, Mr Stephen Hodgson, Mr Mark Bodley, Dr Rajinder Dudrah and Mr Lee Cadman (the "

".. The present value of the turnover or output of the entire works is over £1,000,000 sterling per annum."

"It is not necessary to shew that the misstatement was the sole cause of his acting as he did. If he acted on that misstatement, though he was also influenced by an erroneous supposition, the Defendants will still be liable."

"… Such misstatement was material if it was actively present to his mind when he decided to advance his money. The real question is, what was the state of the Plaintiff's mind, and if his mind was disturbed by the misstatement of the defendants, and such disturbance was in part the cause of what he did, the mere fact of his also making a statement himself could make no difference."

"If someone goes to a restaurant and, having no means whatsoever to pay and no credit arrangement, obtains a meal for which he knows he cannot pay and for which he has no intention of paying he will be guilty of an offence under section 15 of the Theft Act. Such a person would obtain the meal by deception. By his conduct in ordering the meal he would be representing to the restaurant that he had the intention of paying whereas he would not have had any such intention. In the present case when the respondent ordered his meal he impliedly made to the waiter the ordinary representation of the ordinary customer that it was his intention to pay. He induced the waiter to believe that that was his intention. Furthermore, on the facts as found it is clear that all concerned (the waiter, the respondent and his companions) proceeded on the basis that an ordinary customer would pay his bill before leaving. The waiter would not have accepted the order or served the meal had there not been the implied representation."

"(a) that RBS made representations to it; (b) that it understood that those representations were being made; (c) that such representations were false; (d) that it was induced by those representations … to subscribe… and thus to lend; (e) that RBS intended that such representations should induce RZB to enter into the contract…"

"Lastly, the claimant must show that he in fact understood the statement in the sense (so far as material) which the court ascribes to it… Smith v Chadwick.. ; and that, having that understanding, he relied on it. This may be of particular significance in the case of implied statements."

"It is not, therefore, necessary for the representee to establish that he would have acted differently if he had known the truth. And it may not be sufficient either. If it were, a claimant who gave no thought to any representation or did not understand it to have been made, might be entitled to recover."

"Insofar as the Claimants were alleging implied representations it was incumbent on them to prove that such representations were understood to have been made since otherwise there could be no reliance. In relation to most of the alleged implied representations, there was no such evidence, or no sufficient evidence, of any such understanding…"

"… Even if such a representation had been made… There is no evidence (or at any rate none that I accept) that KWL was conscious of any such representation having been made to it, that it relied upon such a representation or that the representation played any part in KWL's decision….There is nothing in Dr Schirmer's evidence, and certainly no evidence which I accept, to suggest that he was ever conscious of the representation which KW claims to have made."

"286. In the circumstances, I agree… that these authorities support the proposition that a claimant in the position of Marme in the present case should have given some contemporaneous conscious thought to the fact that some representations were being impliedly made, even if the precise formulation of those representations may not correspond with what the Court subsequently decides that those representations comprised. If the position were otherwise….The consequence would be that there would be a substantial watering down of the reliance requirement… 287. … The most that can be said is that Mr Maud assumed this to be the position-indeed, as he put it in his second witness statement, he had no reason to think that the position was other than that. An assumption, however, is insufficient for the reasons which I have given. Accordingly, even in relation to the [representation that] the EURIBOR rate being "true and honest", since Mr Maud did not give conscious thought to the point, he cannot have had the necessary awareness to mean that reliance has been made out in this case. In truth, Mr Maud simply did not turn his mind to the point at the time."

"(a) the conduct of the Spice Girls in (i) approving and using promotional material depicting all five of them for use until March 1999 and (ii) participating in the commercial shoot on 4 May 1998 gave rise to a continuing representation by conduct that SGL did not know and had no reasonable grounds to believe that any of the Spice Girls had an existing declared intention to leave the group before the end of March 1999;"

"Given that Aprilia had to sign the agreement to get the right to use the commercial shoot (and that there was no other reason for it to sign the agreement except to get the rights thereunder), it seems to me that the court can infer that indirectly it was induced to enter the contract by the representations made to it when it made the shoot. The same would apply to other promotional material which constituted a representation by conduct. I am satisfied that SGL participated in the commercial shoot and provided logos, images and so on of the Spice Girls in order that Aprilia should sign the agreement. I am also satisfied that the representations by conduct were such as to be likely to induce a person to enter into the agreement. An inducement to enter into a contract need not of course be the sole inducement."

"66. These conclusions were challenged by SGL on the grounds that it had not been established that AWS understood the representations in the sense contended for by AWS (E.A.Grimstead & Son Ltd v McGarrigan Court of Appeal 27th October 1999 unreported), or that SGL intended to induce AWS to sign the Agreement in reliance on representations so understood (Nautamix BV v Jenkins of Retford [1975] FSR 385 a case in fraud). SGL submits that there was no evidence that AWS relied on the representations in that sense; in particular AWS relied on the commercial success of the Spice Girls to keep them together. SGL contends that there was no evidence from any individual in AWS to the effect that AWS would have withdrawn from the negotiations had the representation not been made. It is suggested that AWS was committed too far to justify any implication of withdrawal. 67. We do not accept these submissions. The representation bears the meaning in which it would be reasonably understood by the representee, that is to say, the natural and ordinary meaning which would be conveyed to a normal person. Akerhielm v De Mare [1959] AC 789 . In the circumstances no one at AWS gave any consideration at the time to what representations were to be implied into the statements and conduct of the Spice Girls. But this is not a case in which the representations were ambiguous, so that the problem exemplified in E.A.Grimstead & Son Ltd v McGarrigan does not arise. There is no reason to think that AWS did not understand the representations in the sense alleged. The judge so inferred with regard to approval of promotional material and participation in the commercial shoot. We would do likewise in relation to the other representations to which we have referred."

"69. It remains to consider whether the misrepresentations we have found to have been made did induce AWS to sign the Agreement. SGL contends that no witness for AWS was called to give evidence to that effect. It is true that both Ms Fuzzi and Sr Brovazzo indicated that AWS would not have entered into the Agreement if they had known that Ms Halliwell would leave in September 1998 but that, counsel contended, is not the same as testifying that AWS entered into the contract in reliance on the representation. Moreover, SGL contended, the evidence of Ms Fuzzi appeared to be that AWS was so far committed to the sponsorship deal by 4th May 1998 that it would not have withdrawn even if it had known of Ms Halliwell's intentions. 70. It is sufficient that the misrepresentation is a material inducement, it does not have to be the only one. In Smith v Chadwick (ibid.) page 196 Lord Blackburn said: "

"(iii) Where there is no express misrepresentation, the first question to ask is whether there has been any implied misrepresentation at all and, as with any other type of contract, the essential issue is whether in all the circumstances relating to the entering into of the contract of guarantee or indemnity, including in particular (a) the nature of the contract between the beneficiary and the principal debtor, (b) the conduct of the beneficiary and (c) express representations made by him to the surety, it has been impliedly represented to the surety that there exists some state of facts different from the truth. In evaluating the effect of the beneficiary's conduct a helpful test is whether, having regard to the beneficiary's conduct in such circumstances, a reasonable potential surety would naturally assume that the true state of facts did not exist and that, had it existed, he would in all the circumstances necessarily have been informed of it. (iv) If there has been such a misrepresentation, the next question is whether it induced the person giving the guarantee or indemnity to do so in the sense of its having at least materially influenced his decision, although it may not have been the sole cause of that decision (see Edgington v Fitzmaurice (1885) 29 Ch D 459 at 481, [1881–5] All ER Rep 856 at 860, per Cotton LJ)."

"144 I would tend to accept the submission that, in terms of building blocks, the third element of a cause of action in misrepresentation, inducement, is all about the causal link between the conduct of the defendant and the conduct of the claimant. I also accept that this question is a question of fact in each case. 145 In my judgment the authorities including the authorities relied on by the Claimants tend to show that based on the facts of different cases it may (or may not) be necessary to break that building block down into smaller parts (assumption, the counterfactual of truth and so forth) and that in different cases those smaller parts will be thrown into greater relief. That does not mean however that each expression of the workings of that part becomes an essential component of inducement in each case. 146 That there is some requirement of awareness I am, as I have indicated, persuaded is established by the authorities. Often that requirement will not be in issue; but that does not mean that it is not a requirement; just that in some cases that it is so obvious that the parties do not bother to argue about it. And when that requirement is in issue, in some cases the question will be what the claimant consciously thought, but in other cases it may be better expressed by a focus on active presence. 147 I am of the opinion that there will however be cases where the element of awareness will come very close to something which might loosely (and without careful analysis) be characterised as assumption and which is most obviously derived from conduct. As I remarked to Mr Beltrami in closing, the dividing line between giving contemporaneous conscious thought to the conduct and contemporaneous conscious thought to the representation may in some cases be thin to non-existent. In some cases what Mr Cox referred to as specific conduct may precisely and inevitably equate to a representation, without any room for ambiguity. That may be the case, for example, in the simplest of representation by conduct cases. Thus, for example, in the case of a bidder at an auction raising a paddle, representing a willingness and ability to pay a certain sum. In such a case a requirement for separate or distinct understanding or thought to the representations would be artificial. 148 Mr Beltrami's resistance to this approach (which does come close to the formulations both of assumption and subconsciousness which were advanced for the Claimants) is founded on two related things. The first is that this case is not so stark in its facts, such that those facts provide an easy basis for inference of any representation. Further (and this may be only partly a different point) here the nature of the facts is some way distant from the representations which are ultimately spelt out; the conduct does not "speak for itself" in the same way so as to permit of the quasi-automatic understanding which may look like assumption. He is rightly keen that I should not infer a principle out of a situation which is overly simplistic which would then prove inapt in more complex cases. He is of course right about this; but the principle operates in reverse. I should be equally cautious about expressing a principle which works well in the complex cases but which is unrealistic in more pedestrian situations."

"149 The second thing on which his resistance is founded is the fact that awareness has been found to be required in the cases of Marme …, which relate to alleged representations which are effectively identical. This, it seems to me, is key in the present case. Were it not for this I would certainly be tempted to say that the question of what feeds into the equation on understanding depends on the precise facts as to the representation, and the answer may be one which requires conscious thought or some less stringent element of awareness. From there it would be but a short step to acceding to the submissions made as to the unsuitability of determining these issues at the strike out/summary judgment stage. 150 However I do not operate in a vacuum; far from it. I have two cases where the representations found or assumed to be found were essentially the same as the representations to be assumed in this case; and where the judges involved have said in one form or another that awareness is required. To reiterate: (i) In PAG the context was LIBOR representations said to derive from the making of swaps transactions, the representations were very close to identical to those asserted by Newham and wider than those asserted by Leeds; no representations were found to have been made at first instance, but on the assumption that they were all made, it was held that the absence of any thought being given to the representations (the high point of the evidence being assumption of honesty/straightforward rate setting) was fatal. (ii) In Marme , which concerned EURIBOR representations, the court rejected the complex set of representations alleged by the claimant, holding that the only representation that could have been possibly implied was one analogous to the one found in PAG (ie that the defendants were not manipulating and did not intend to manipulate EURIBOR), because no such specific basis from which to sensibly imply such complex representations could be found. Nevertheless, if there had been such representations, reliance would have required some contemporaneous conscious thought being given to them and the evidence that at best the relevant person had assumed that the rate was honest, and did not understand the representations to have been made was not enough. 151 I do therefore conclude that the Bank is broadly speaking correct in the test which I need to apply in the present case and further that proceeding on the basis of assumption in the present case would be wrong in law."

"0. OBJECTIVES The certificate of conformity is a statement delivered by the vehicle manufacturer to the buyer in order to assure him that the vehicle he has acquired complies with the legislation in force in the European Union at the time it was produced. The certificate of conformity also serves the purpose to enable the competent authorities of the Member States to register vehicles without having to require the applicant to supply additional technical documentation. 1. GENERAL DESCRIPTION 1.1. The certificate of conformity shall consist of two parts. (a) SIDE 1, which consists of a statement of compliance by the manufacturer. The same template is common to all vehicle categories. (b) SIDE 2, which is a technical description of the main characteristics of the vehicle. The template of side 2 is adapted to each specific vehicle category."

"Article 1 Subject matter 1. This Regulation establishes common technical requirements for the type-approval of motor vehicles (vehicles) and replacement parts, such as replacement pollution control devices, with regard to their emissions. Article 4 Manufacturers' obligations 1. Manufacturers shall demonstrate that all new vehicles sold, registered or put into service in the Community are type approved in accordance with this Regulation and its implementing measures. Manufacturers shall also demonstrate that all new replacement pollution control devices requiring type-approval which are sold or put into service in the Community are type approved in accordance with this Regulation and its implementing measures. These obligations include meeting the emission limits set out in Annex I and the implementing measures referred to in Article 5. Article 5 Requirements and tests 2. The use of defeat devices that reduce the effectiveness of emission control systems shall be prohibited… 3. The specific procedures, tests and requirements for type-approval set out in this paragraph, as well as requirements for the implementation of paragraph 2, which are designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 15(3). This shall include establishing the requirements relating to: (a) tailpipe emissions, including test cycles, low ambient temperature emissions, emissions at idling speed, smoke opacity and correct functioning and regeneration of after-treatment systems; (c) OBD systems and in-use performance of pollution control devices; (d) durability of pollution control devices, replacement pollution control devices, in-service conformity, conformity of production and roadworthiness;… (h) test equipment; Article 10 Type-approval 1. With effect from 2 July 2007, if a manufacturer so requests, the national authorities may not, on grounds relating to emissions or fuel consumption of vehicles, refuse to grant EC type approval or national type approval for a new type of vehicle, or prohibit the registration, sale or entry into service of a new vehicle, where the vehicle concerned complies with this Regulation and its implementing measures.. 2. With effect from 1 September 2009…the national authorities shall refuse, on grounds relating to emissions or fuel consumption, to grant EC type approval or national type approval for new types of vehicle which do not comply with this Regulation and its implementing measures.. 3. With effect from 1 January 2011…national authorities shall, in the case of new vehicles which do not comply with this Regulation and its implementing measures…consider certificates of conformity to be no longer valid for the purposes of Article 7(1) of Directive 70/156/EEC [for which read Article 21 of the Framework Directive] and shall, on grounds relating to emissions or fuel consumption, prohibit the registration, sale or entry into service of such vehicles… Article 13 Penalties 1. Member States shall lay down the provisions on penalties applicable for infringement by manufacturers of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 2 January 2009 and shall notify it without delay of any subsequent amendment affecting them. 2. The types of infringements which are subject to a penalty shall include: (a) making false declarations during the approval procedures or procedures leading to a recall; (b) falsifying test results for type-approval or in-service conformity; (c) withholding data or technical specifications which could lead to recall or withdrawal of type-approval; (d) use of defeat devices; and (e) refusal to provide access to information. Article 17 Repeal 1. The following Directives shall be repealed with effect from 2 January 2013: — Directive 70/220/EEC… 3. References made to the repealed Directives shall be construed as being made to this Regulation."

"The obligations of national authorities concerning market surveillance provided in this Regulation are more specific than those laid down in Regulation (EC) No 765/2008. This is the result of the need to take account of the special characteristics of the framework for type-approval and the need to complement that framework with an effective market surveillance mechanism ensuring the robust verification of compliance of the automotive products covered by this Regulation. In order to ensure the functioning of the framework, it is essential that market surveillance authorities verify compliance of the automotive products irrespective of whether their type approval was granted before or after the date of application of this Regulation."

" Article 31 Conformity of production arrangements 1. An approval authority that has granted an EU type-approval shall take the necessary measures in accordance with Annex IV to verify, if necessary in cooperation with the approval authorities of the other Member States, that the manufacturer produces the vehicles, systems, components or separate technical units in conformity with the approved type. 2. An approval authority that has granted a whole-vehicle type-approval shall verify a statistically relevant number of samples of vehicles and certificates of conformity on their compliance with Articles 36 and 37 and shall verify that the data in those certificates of conformity are correct. 3. An approval authority that has granted an EU type-approval shall take the necessary measures to verify, if necessary in cooperation with the approval authorities of the other Member States, that the arrangements referred to in paragraphs 1 and 2 of this Article continue to be adequate so that vehicles, systems, components or separate technical units in production continue to conform to the approved type and that certificates of conformity continue to comply with Articles 36 and 37. Article 51 National evaluation regarding vehicles, systems, components and separate technical units suspected of presenting a serious risk or non-compliance Where, based on their own market surveillance activities, or based on information provided by an approval authority or a manufacturer or based on complaints, the market surveillance authorities of one Member State have sufficient reasons to believe that a vehicle, system, component or separate technical unit presents a serious risk to the health or safety of persons or to other aspects of the protection of public interests covered by this Regulation or does not comply with the requirements laid down in this Regulation, they shall evaluate the vehicle, system, component or separate technical unit concerned with respect to the relevant requirements laid down in this Regulation. The relevant economic operators and the relevant approval authorities shall cooperate fully with the market surveillance authorities, which shall include forwarding the results of all relevant checks or tests performed in accordance with Article 31. Article 88 Repeal of Directive 2007/46/EC [ie the Framework Directive] Directive 2007/46/EC is repealed with effect from 1 September 2020. References to Directive 2007/46/EC shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in point 3 of Annex XI to this Regulation."

"An interpretation deduced from the absence of an express statement in a legal provision is acceptable only in the last resort, when no other interpretation appears to be adequate or compatible with the text of the provision, its context and its objectives."

"Member States may not refuse to register or prohibited the sale, entry into service or use of any new vehicle on grounds relating to its construction or functioning, where that vehicle is accompanied by a certificate of conformity."

"With effect from 1 January 2011,… National authorities shall, in the case of new vehicles which do not comply with this Regulation and its implementing measures…consider certificates of conformity to be no longer valid for the purposes of Article 7 (1) of Directive 70/156… and shall, on grounds relating to emissions and fuel consumption, prohibit the registration, sale or entry into service of such vehicles.…"

"74. Since the approval procedure established by the Framework Directive… is based on the principle of total harmonisation, the margin of discretion conferred on Member States by Articles 12 and 30… Cannot permit them to evaluate themselves whether it is necessary to achieve that objective. 75. … To permit the Member States themselves to evaluate the necessity to achieve that objective of conformity would deprive the harmonised system of approval defined by the combined provisions of the Framework Directive and the regulatory acts of any effectiveness."

"51. In the Commission's opinion however, an infringement of Article 18… due to an incorrect certificate of conformity will not make the relevant statement "invalid". 52. This is because a certificate of conformity, as described above, does not constitute a regulatory act that is valid (or not), but constitutes a mere statement by the manufacturer as a holder of the type-approval vis-à-vis the buyer of the vehicle that is accompanied by the certificate of conformity. 53. This fact remains unaffected by Article 26 of this Directive… 55. The reference to a "valid" certificate of conformity in Article 26 of Directive 2007/46 is rather more relevant in connection with the transitional provisions of the regulatory acts that are separate to this Directive and stated in its Annex IV: Regulatory acts in which the requirements for type-approval are stated normally contain a transitional provision that stipulates from what date the requirement applies to the approval for new types and from what date the requirement applies to the registration, sale or entry into service of new vehicles (see, for example, Article 10 of Regulation 715/2007). The significance of the second date is normally stated as being that from this date onwards, certificates of conformity that only refer to the conformity of the vehicle or the conformity of the approved type with regulatory acts prior to the validity of the new type approval requirements are no longer "valid". 56. As a result it is to be concluded that a vehicle whose certificate of conformity meets formal standards (allocation to approved type and issuance by the correct manufacturer), can continue to be registered, sold and brought into service based on this inaccurate, but "valid" [certificate] for the purposes of Article 26 of Directive 2007/46."

"a person who- (a) contravenes or fails to comply with any construction or use requirement other than one within section 41A(a) or 41B(1)(a) [or 41D] of this Act, or (b) users on a road a motor vehicle or trailer which does not comply with such a requirement, or causes or permits a motor vehicle or trailer to be so used, is guilty of an offence."

"6.— Compliance with Community Directives and ECE Regulations (1) For the purpose of any regulation which requires or permits a vehicle to comply with the requirements of a Community Directive or an ECE Regulation, a vehicle shall be deemed so to have complied at the date of its first use only if – (a) one of the certificates referred to in paragraph (2) has been issued in relation to it; or (b) the marking referred to in paragraph (3) has been applied; […] (c) it was, before it was used on a road, subject to a relevant type approval requirement as specified in paragraph (4) [ ;or ] … (2) The certificates mentioned in paragraph (1) are – (a) a type approval certificate issued by the Secretary of State under regulation 5 of the Type Approval Regulations or of the Type Approval for Agricultural Vehicles Regulations; (b) a certificate of conformity issued by the manufacturer of the vehicle under regulation 6 of either of those Regulations; or (c) a certificate issued under a provision of the law of any member state of the [ European Union ] which corresponds to the said regulations 5 or 6, being in each case a certificate issued by reason of the vehicle's conforming to the requirements of the Community Directive in question… 61A.— Emission of smoke, vapour, gases, oily substances etc—further requirements for certain motor vehicles first used on or after 1st January 2001 (1) This regulation shall apply to motor vehicles first used on or after 1st January 2001. (2) Subject to paragraphs(5) to (7) and Schedule 7XA, a motor vehicle in any category shall comply with such design, construction and equipment requirements and such limit values as may be specified for a motor vehicle of that category and weight by any Community Directive specified in item 1 or 2 of the Table and from such date as is specified by that Community Directive. (3) Subject to paragraphs (4) to (7) and Schedule 7XA, no person shall use, or cause or permit to be used, on a road a motor vehicle if the motor vehicle does not comply with such limit values as may apply to it by virtue of any Community Directive specified in item 1 or 2 of the Table, and from such date as is specified by that Community Directive, unless the following conditions are satisfied with respect to it – (a) the failure to meet the limit values does not result from an alteration to the propulsion unit or exhaust system of the motor vehicle; (b) neither would those limit values be met nor the emissions of gaseous and particulate pollutants and smoke and evaporative emissions be materially reduced if maintenance work of a kind which would fall within the scope of a normal periodic service of the vehicle were carried out on the motor vehicle; and (c) the failure to meet those limit values does not result from any device designed to control the emission of gaseous and particulate pollutants and smoke and evaporative emissions which is fitted to the motor vehicle being other than in good and efficient working order…"["

"using on a road a motor vehicle which does not comply with a requirement of regulation 61 or 61A of the 1986 Regulations."

"what if the relevant authority is told that a particular vehicle's COC is forged or there are other forged documents? Is it powerless to act?"

"… In Germany, a product recall monitored by the KBA… can be pursued with a threat of decommissioning and even subsequent mandatory deregistration of the affected vehicle."

"…(2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality. (2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances. (2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods— (a) fitness for all the purposes for which goods of the kind in question are commonly supplied, (b) appearance and finish, (c) freedom from minor defects, (d) safety, and (e) durability. (2D) If the buyer deals as consumer…the relevant circumstances mentioned in subsection (2A) above include any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling."

"… There is little doubt that if after-acquired knowledge that a characteristic is defective is to be admitted, it would be wrong to exclude later knowledge qualifying what had been discovered in relation to the defect. On this aspect, the logic of the majority view [in Kendall v Lillico ] is unanswerable."