Chancery Division
Published October 7, 2008
Cooper v Attorney-General
Before Mr Justice Plender
Judgment September 30, 2008

A judicial error in the application of European Community law would not create liability for damages unless it was a manifest infringement of the applicable law.

Mr Justice Plender so held in the Queen’s Bench Division when dismissing a claim by Stephen Cooper against the Attorney-Gener-al for an award of damages on the ground that the 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 December 21, 1999, and June 12, 2000, in refusing the Council for the Protection of Rural England, of which the claimant was a trustee of its London branch, judicial review of certain decisions by Hammersmith and Fulham London Borough Council.

Mr Charles Béar, QC and Mr James McClelland for Mr Cooper; Mr Philip Sales, QC, Mr James Maurici and Mr Richard Honey for the defendant.

MR JUSTICE PLENDER 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 Köbler, Traghetti del Mediterraneo SpA v Repubblica Italiana (Case C-173/03) ([2006] ECR I-5177 and Gestas, an as yet unreported case of the French Conseil d’État, May 19, 2008, that member states had to make good damage caused by 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: (i) the rule of law infringed must be intended to confer rights on individuals; (ii) the breach must be sufficiently serious and state liability could not be confined only to cases concerning intentional fault or serious misconduct; and (iii) 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, it was held that 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 Köbler.

Solicitors: Richard Buxton, Cambridge; Treasury Solicitor.

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