Cooper v HM Attorney General

Köbler liability for a final national court's breach of Community law is exceptional. A claimant must establish a Community rule conferring individual rights, a sufficiently serious breach, and a direct causal link to loss.

A breach is sufficiently serious only where the court has manifestly infringed applicable Community law. The inquiry is broad. It includes the clarity of the rule, whether the error was excusable, institutional views, and any failure to make a required preliminary reference. A wrong but considered interpretation reached in the ordinary judicial function will not ordinarily suffice.

National procedural rules, including rules identifying the real administrative decision under challenge and applicable time limits, may remain relevant subject to equivalence and effectiveness. Errors concerning environmental assessment and a preliminary reference were excusable on the facts and did not engage liability.

The claimant sought damages from the Attorney General for alleged Community-law errors in two earlier, unappealable decisions of the Court of Appeal concerning the White City development. The earlier proceedings, brought by the Council for the Protection of Rural England, challenged the absence of a formal environmental assessment under the EIA Directive at the outline-permission, reserved-matters, revocation, and modification stages.

Plender J determined two preliminary issues against the claimant: the Community-law errors made by the English courts and whether any were sufficiently serious to establish state liability under Köbler: [2008] EWHC 2178 (Admin). The appeal concerned only those issues, not causation or loss.

The central issue was whether the impugned decisions' errors, including failures to make a preliminary reference, were manifest and sufficiently serious breaches of Community law.

1. Appeal dismissed. The court held that Köbler liability requires proof of a rule conferring rights on individuals, a sufficiently serious breach, and a direct causal link to loss. Liability for a decision of a final national court is exceptional because the judicial function and legal certainty must be respected.

2. A sufficiently serious breach requires a manifest infringement. The court must consider all circumstances, including the clarity and precision of the relevant rule, intention, whether the error was excusable, any relevant Community-institution position, and compliance with the reference duty under Article 234 of the EC Treaty. A merely incorrect answer reached through normal judicial interpretation does not establish liability. Failure to refer a non-acte-clair issue does not automatically do so.

3. The earlier Court of Appeal had erred in treating outline permission alone as the relevant development consent under the EIA Directive. It had also erred by failing to treat the proposed modifications as requiring consideration of whether an environmental assessment was necessary. However, the position concerning whether the expired time limit for challenging outline permission could be bypassed at the reserved-matters or revocation stage remained unclear. The domestic Greenpeace principle governing the true target of a judicial-review challenge was a relevant procedural consideration.

4. The failures to refer the unresolved Wells point were excusable. At the material time, the issue was difficult, domestic authority and the Commission's position provided support for the earlier approach, and the claimant's case was affected by exceptional delay. The failure concerning modifications was also excusable because the point was raised late, briefly, and through relief directed to reserved matters rather than the modifications decision itself.

5. The court refused a further reference to the Court of Justice. The national court could determine the seriousness of the breaches, and no necessary question required a reference. It added that a later Court of Justice decision does not invariably preclude Köbler liability; the material question is whether that later development was predictable.

• Court of Appeal (Civil Division): dismissed the claimant's appeal and upheld the preliminary-issue decision: [2010] EWCA Civ 464 .
• High Court of Justice (Queen's Bench Division, Administrative Court): Plender J determined the preliminary issues against the claimant: [2008] EWHC 2178 (Admin).