Cooper v Attorney General
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden |
| Judgment Date | 12 May 2010 |
| Neutral Citation | [2010] EWCA Civ 464 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 May 2010 |
| Docket Number | Case No: A2/2008/2507 |
[2010] EWCA Civ 464
[2008] EWHC 2178 (Admin)
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
PLENDER J
Before: Lady Justice Arden
Lord Justice Moore-bick
and
Lord Justice Rimer
Case No: A2/2008/2507
Mr Robert McCracken QC and Ms Emma Dixon (instructed by Messrs Richard Buxton) for the Appellant
Mr James Eadie QC and Mr James Maurici (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 1–3 December 2009
Lady Justice Arden:
This is the judgment of the Court.
SECTION 1: INTRODUCTION AND BACKGROUND
“Köbler liability” in Community law
In 2003, in Case C-224/01 Köbler v Republik Osterreich [2003] ECR 1– 10239, the Court of Justice of the European Communities (now the Court of Justice of the European Union) (“the Court of Justice”) created a new form of member state liability for violations of Community law. It held that a member state could be liable in damages for a serious breach of Community law on the part of a national court of final appeal. The present case, which is an appeal from the order of Plender J dated 30 September 2008, determining certain preliminary issues on liability against the claimant, Mr Stephen Cooper, is the first case in which this court has had to consider this new and sometimes controversial form of member state liability, referred to below as “ Köbler liability”. This may indeed be the first time that Köbler liability has been considered by an appellate court in a common law jurisdiction.
We will reserve to section 2 of this judgment further consideration of the nature of Köbler liability. It is sufficient at this stage to note that the Court of Justice held that there are three conditions to Köbler liability:
i) The alleged breach of Community law must be of a rule conferring rights on individuals.
ii) The breach must be “sufficiently serious”.
iii) There must be a direct causal link between the breach and the loss or damage sustained by the claimant.
As further explained below, to determine whether a breach was “sufficiently serious”, the court must consider all the circumstances. We have been asked to take into account the arguments that were placed before the courts on the occasions on which Mr Cooper contends that Köbler liability was incurred. We do not have verbatim transcripts of the oral arguments presented to the court but we have been referred to the parties' skeleton arguments. We also have the benefit of detailed notes taken by Mr Richard Buxton, solicitor for the then claimant, The Council for the Protection of Rural England (referred to below as “CPRE”) and now for Mr Cooper, during the course of the relevant hearings.
We will in general refer to Community law as opposed to European Union law notwithstanding that this appeal was heard following the coming into force of the Lisbon Treaty. We will also refer to the provisions of the EC Treaty rather than to those of the treaties in force after the approval of the Lisbon Treaty, as those were the provisions in force at the time of the impugned decisions (as defined in the next paragraph).
The claims in this case
The claims in these proceedings are based on two decisions of this court (“the impugned decisions”) in its capacity as a court of final appeal for England and Wales. The context in each case was a challenge to decisions made by The London Borough of Hammersmith and Fulham (“Hammersmith and Fulham”) about a large development in London (“the White City development”) with reference to the application to that development of the Environmental Impact Assessment Directive (Directive 85/337) (“the EIA Directive”) and the domestic implementing legislation. The complaints made by CPRE stemmed from its contention that Hammersmith and Fulham's decision taken before the grant of the outline planning permission that an Environmental Assessment (“ EA”) was not required was not taken by a duly authorised officer of Hammersmith and Fulham. In the first impugned decision, R v London Borough of Hammersmith and Fulham, ex parte Trustees of the CPRE (London Branch) (2001) 81 P &CR 73 (Swinton Thomas, May LJJ and Singer J), the decision was made on a renewed application for judicial review and there is no appeal from a decision refusing such an application (see R (o/a Eastaway) v Secretary of State for Trade and Industry [2000] 1 WLR 2222). The second impugned decision, R v London Borough of Hammersmith and Fulham, ex parte Trustees of the CPRE (London Branch) (Ward LJ and Bell J) 12 June 2000, unreported, was made on an application for permission to appeal from the High Court of Justice to this court, from which likewise there is no appeal. Mr Cooper claims that the impugned decisions met all the conditions for Köbler liability and caused him loss in the form of adverse orders for costs, but we are not concerned with the third condition to liability as the only questions which the judge at first instance had to deal with were two preliminary issues designed to identify the errors of Community law which had been made and whether those errors were sufficiently serious to give rise to Köbler liability.
Mr Cooper is represented on this appeal by Mr Robert McCracken QC and Miss Emma Dixon. The Attorney General is represented on this appeal by Mr James Eadie QC and Mr James Maurici.
Provisions of the EC Treaty
Reference is made below to Article 10 and Article 234 of the EC Treaty (now Articles 4(3) and 267 of the Treaty on the Functioning of the European Union).
Article 10 provided that:
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community….”
Article 234 provided that the Court of Justice has jurisdiction to give preliminary rulings concerning the interpretation of directives of the Community where the national court considered that a decision on the question was necessary for it to give judgment and the question was not acte clair. Importantly Article 234 imposed an obligation on a court of final appeal to request a preliminary ruling in those circumstances.
The EIA Directive and implementing regulations
The EIA Directive embodies and promotes far-reaching and highly significant aims. It is a “fundamental instrument” of the European Union's environmental policy: R. v London Borough of Bromley, ex parte Barker [2007] 1 AC 470, 474C per Lord Hope. The Court of Justice has held that “[t]he wording of the [EIA] Directive indicates that it has a wide scope and a broad purpose” (see, for example Kraaijeveld v Gedeputeerde Staten van Zuid Holland [1996] ECR 1–5403 at [31]).
The question of the need for an EA is not a mere technical issue, such as, for instance, a question about the correctness of a customs classification. There is no doubt but that the EIA Directive regulates an important area of life for the European Union, namely the conditions which must be fulfilled to protect the environment if there is development. As Mr McCracken submits, the EIA Directive is an important piece of legislation.
Moreover one of the aims of the EIA Directive is to bring direct public participation into decision-making where those decisions may have significant environmental effects. As Lord Hoffmann said in Berkeley v Secretary of State for the Environment and another [2001] 2 AC 603 at 615:
“The [EIA Directive] requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure, namely that of an [EA]. And an essential element in this procedure is that what the Regulations call the “environmental statement” by the developer should have been “made available to the public” and that the public should have been “given the opportunity to express an opinion” in accordance with article 6(2) of the Directive. As Advocate General Elmer said in Commission of the European Communities v Federal Republic of Germany (Case C-431/92 [1995] ECR I-2189, 2208–2209, para 35:
“It must be emphasised that the provisions of the Directive are essentially of a procedural nature. By the inclusion of information on the environment in the consent procedure it is ensured that the environmental impact of the project shall be included in the public debate and that the decision as to whether consent is to be given shall be adopted on an appropriate basis.”
The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. In a later case ( Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR I-5403, 5427, para 70), Advocate General Elmer made this point again:
“Where a member state's implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made the subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard.””
Accordingly, public and democratic participation is an aim of the EIA process in its own right, and is to be...
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