EUROPEAN COMMUNITY — Breach of Community law — Scope of state liability — State authorities liable for damages for infringement of Community law — Whether including court of last instance — Conditions of liability

Cooper v Attorney General [2008] EWHC 2285 (QB); [2008] WLR (D) 303

QBD: Plender J: 30 September 2008

A judicial error in the application of European Community law must be a manifest infringement of the applicable law in order to create liability for damages.

Plender J sitting in the Queen's Bench Division so held when dismissing a claim by Stephen Cooper against the Attorney General for an award of damages on the ground that a court of last instance had made an error in the application of Community law. The claim concerned two judgments of the Court of Appeal on 21 December 1999 and 12 June 2000 in refusing claims by the Council for the Protection of Rural England (of which the claimant was a trustee of its London branch) for judicial review of certain decisions by Hammersmith and Fulham London Borough Council.

PLENDER J said that the proceedings were the first of their kind in the United Kingdom and were based on a cause of action recognised by the European Court of Justice in Köbler v Republik Österreich (Case C-224/01) [2004] QB 848. His Lordship stated that he did not find it particularly helpful to compare the gravity of error made by one court with that of another for the purpose of determining whether a court had been guilty of a manifest infringement of Community law. He deduced from the Köbler case, from Traghetti del Mediterraneo v Repubblica Italiana [2006] ECR I-5177 and from Gestas (an unreported decision of the French Conseil d'Etat, dated 19 May 2008) that member states must make good damage caused to individuals by infringements of Community law for which they were responsible even where the infringement stemmed from a decision of a court adjudicating at last instance, provided that three conditions were met: (1) the rule of law infringed must be intended to confer rights on individuals; (2) the breach must be sufficiently serious and state liability could not be confined only to cases concerning intentional fault or serious misconduct; and (3) there must be a causal link between the breach of obligation and the loss or damage sustained by the parties. His Lordship also stated that claims based on the Köbler cause of action were to be reserved for exceptional cases involving errors that were manifest. In making an assessment on that point, account must be taken of the specific characteristics of the judicial function, which required a judgment of the interpretation of provisions capable of bearing more than one meaning. In the circumstances of this case, the claimant had failed to meet the standard required to constitute a manifest infringement of the applicable law. The two decisions of the Court of Appeal had not disclosed any manifest error so as to give rise to liability pursuant to the Köbler case.

Appearances: Charles Béar QC and James McClelland (Richard Buxton Solicitors) for the claimant; Philip Sales QC, James Maurici and Richard Honey (Treasury Solicitor) for the defendant.

Reported by: Scott McGlinchey, barrister