Köbler in the English Courts: Cooper v Attorney-General

The Times today reported a decision of Mr Justice Plender in the case of Stephen Cooper v Attorney-General (Judgment of 30 September 2008) in the English High Court (The Times, 7 October 2008, 'When judicial error in EC law gives rise to damages'). This is thought to be the first claim brought in the UK for damages based on the cause of action developed by the ECJ in the case of Köbler v Republik Österreich (Case C-224/01).

The claim concerned two judgments of the Court of Appeal of 1999 and 2000, in which the Council for the Protection of Rural England, of which the claimant was a trustee of the London branch, had been refused judicial review of decisions by local authorities in London (R. v London Borough of Hammersmith and Fulham [2000] 2 C.M.L.R. 1021).

According to The Times, "His Lordship (...) 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".