Koro v Secretary of State for Justice

A claim seeking rights under a victims’ rights directive was properly characterised as a public law claim. A claimant could not use Part 8 to avoid the judicial review procedure where the claim challenged the alleged failure of a public authority to transpose or apply the directive and sought a mandatory order. The exclusivity principle permits an ordinary claim where a genuine private law right is being enforced, but no such right arose here. The claim was also unarguable on its merits: the directive did not confer a right to legal aid or reimbursement for bringing or funding a private prosecution, and the relevant conditions were left to national law.

The claimant, who had brought a private prosecution, issued a Part 8 claim against the Secretary of State for Justice. He sought declarations that Articles 13 and 14 of Directive 2012/29/EU had not been transposed into domestic law, orders for legal aid and reimbursement of prosecution expenses, and a declaration concerning Article 6(1) of the ECHR.

The defendant applied to strike out the claim under CPR r 3.4(2)(a) and (b), arguing that the claim disclosed no reasonable grounds and was an abuse of process because it should have been brought by judicial review and sought to reopen matters previously raised in judicial review proceedings. The central issues were whether Part 8 was available and whether the claimed rights had any reasonable prospect of success.

1. Strike-out and procedure. The claim was struck out as an abuse of the court’s process under CPR r 3.4(2)(b). The claim form did not state the legal basis for the remedies as required by CPR r 8.2(b)(ii), although that defect alone could have been cured by amendment.
2. Exclusivity principle. The court adopted the more nuanced approach identified in O’Reilly v Mackman [1983] 2 AC 237 and Roy v Kensington and Chelsea FPC [1992] 1 AC 624. An ordinary claim may proceed where it vindicates a genuine private law right, even if public law matters arise. That exception did not apply. The directive concerned criminal procedure, victim participation and the duties of Member States. The claim therefore raised public law issues and contained no free-standing private law right.
3. The claim also sought a mandatory order, for which CPR r 54.2 required use of the judicial review procedure. Part 8 would have circumvented the judicial review time limits and the statutory restriction on appealing the refusal of permission.
4. Underlying merits. It was not reasonably arguable that a victim had party status in criminal proceedings merely because any person could bring a private prosecution under section 6 of the Prosecution of Offences Act 1985. Articles 13 and 14 did not confer legal aid or reimbursement for bringing or funding a private prosecution. The conditions were to be determined by national law. Section 17(5) of that Act potentially provided a route for costs incurred before the CPS took over, but the claimant had not addressed whether he had applied.
5. The arguments based on Article 47 of the Charter and Article 6 of the ECHR had no reasonable prospect without an identified directive conferring an enforceable right. Permission to amend and proceed under Part 54 was refused. The jurisdiction objection based on section 4 of the Human Rights Act 1998 failed because the hearing concerned case management and strike-out, not trial of a claim for a declaration of incompatibility.

First-instance strike-out application. No appellate history is stated in the judgment.