Cooper v Attorney-General [2008] EWHC 2178

The High Court (Plender J.) has dismissed the first claim brought in the UK for damages, pursuant to the ECJ’s decision in Case C-224/01 Kobler v Republik Osterreich [2003] ECR I-10239. In that case the ECJ held that a Member State may be answerable in damages for failures by its courts of final instance to give effect to Community law, where the failure amounts to a sufficiently serious breach of Community law. The case arises out of what are alleged to have been sufficiently serious/manifest errors of Community law by the Court of Appeal when dismissing judicial review proceedings commenced by Stephen Cooper and the other then trustees of the CPRE London Branch in October 1999 in respect of the White City development: see R. v London Borough of Hammersmith and Fulham [2000] 2 C.M.L.R. 1021; [2000] Env. L.R. 549 and [2000] Env. L.R. 532. Plender J.concluded that the case fell “far below the standard required to constitute a manifest infringement of the applicable law so as to give rise to a claim for damages”. He said: “Any contention that a court adjudicating at last instance can be said to have made a manifest error of Community law when its judgment is, in some respect, inconsistent with a later judgment of the ECJ is as misconceived as it is inconsistent with the judgment in Köbler. Community law is a system in the process of constant development. This is recognized in the many judgments of the ECJ that refer to “the subsequent development of Community law applicable to this domain” (see most recently Case C 375/05, Erhard Geuting v Direktor der Landwirtschaftskammer Nordrhein-Westfalen für den Bereich Landwirtschaft, 4th October 2007, § 18.) This being the case, inconsistencies between national decisions and subsequent judgments of the Court of Justice can be expected to arise. Claims based on the Köbler case are to be reserved for exceptional cases, involving errors that are manifest; and in assessing whether this is the case, account must be taken of the specific characteristics of the judicial function, which entails the application of judgment to the interpretation of provisions capable of bearing more than one meaning.” Plender J. granted permission to appeal. James Maurici is junior counsel for the Attorney-General (led by Philip Sales QC)