Mauritius Litigation Guide IBA Litigation Committee

Transcription

1 The Process of a Typical Commercial Case Mauritius Litigation Guide IBA Litigation Committee Publication date: October 27, 2014 Mr. Ammar Oozeer aoozeer@juristconsult.com Juristconsult Chambers Level 6, Newton Tower, Sir William Newton Street Port Louis, Mauritius

2 1. Limitation issues Actions in rem are time-bared after 30 years whereas personal actions, which can be contractual or tortious, are time-bared only after 10 years 1. This is generally the case except where the limitation period is expressly provided in an Act of Parliament. For example, the State Proceedings Act provides a limitation period of 2 years for an action in tort against the State of Mauritius. 2. Pre-litigation requirements There are no pre-litigation requirements or actions as such that parties are ought to perform prior to the start of a commercial trial. However, by way of convention, all efforts to save time and avoid litigation are appreciated and well seen by the courts. 3. Starting proceedings Commercial claims above Rs 500,000 ( 10,000) must be lodged at the Supreme Court, which will deal with it through its commercial division. A claim below this amount is lodged before the Intermediate Court of the District Court. The applicable procedural rules at the Supreme Court are the Supreme Court Rules 2000 ( SCR ). Commercial proceedings are initiated by way of Plaint with Summons 2 except for the following: (a) (b) (c) If the action is one for issue of a prerogative order e.g. writs of injunction, certiorari, or mandamus; or the circumstances require urgency; proceedings must be initiated by way of motion supported by affidavit: If the procedure by way of motion is prescribed by an enactment. An action before the Judge in Chambers must be initiated by way of proecipe and affidavit. It is to be noted that Plaint with Summons remains the most common way that commercial actions are entered in the Supreme Court. It is to be noted that if the defendant is outside Mauritius, leave of the Judge sitting at Chambers should first be obtained before the court papers are served 1 See Articles 2268 and 2270 of the Mauritian Code Civil. 2 See SCR, Rule 2(1).

3 on the defendant. Applications for leave to serve proceedings out of the jurisdiction are made ex parte under the Mauritius Courts (Civil Procedure) Act. Service of such initial process (e.g., in commercial actions in the Supreme Court, the plaint with summons) must be effected out of Mauritius in the same way as the initial process in an action is required to be served in the country or jurisdiction in which the service is to be effected. 4. Timetable and Case management A plaintiff must serve his Plaint with Summons not later than 14 clear days before the returnable date 3. In addition to the returnable date, a Plaint with Summons must also state the substance of the cause of action and also be accompanied with a notice describing the documentary of evidence ( Tender of Evidence ) which the plaintiff intends to adduce at the hearing and indicating where the documents may be examined within a reasonable time before the hearing. One way for the defendant to test the tenability of a Plaint with Summons is by way of applying for Particulars 4. By so doing, he can also ask for communication of documents set out in the Tender of Evidence. Afterwards, the defendant shall file a Plea, which may or may not include a counterclaim. The Plea should also contain a Tender of Evidence on behalf of the defendant, which in turn can be tested by the plaintiff by way of Particulars. Should the Plea contain a counterclaim, the plaintiff will have to file a plea to this counterclaim on a date fixed by the Master and Registrar (hereinafter referred to as Master ) of the Master s Court. In case the plaintiff desires to admit some of the facts; assert new and additional facts; plead an objection on a point of law or; plead that the defendant has misstated the cause of action, with respect to the plea, he then will have to serve a Reply on the defendant. It is noteworthy that all pleadings mentioned above, together with any particulars, shall be filed before the Master and copies communicated to all parties 5. For the last stage prior trial, the attorney for the plaintiff has to apply to the Registry for a certified copy of the pleadings and all entries on record in the case. The attorney shall also prepare and file in the Registry not later than 14 days 3 Returnable date is the date and time specified in the Plaint with Summons that calls upon the defendant to appear before the Court. See SCR, Rule 3(1)(c). 4 See SCR, Rule See SCR, Rule 14.

4 before the hearing, a brief of the record, according to the certified copy in as many copies as needed and forward a copy thereof to every other party. 6 A case finally is fixed for trial only when the Master is satisfied that all incidents of pleadings in the case have been dealt with and that the case is ready to be heard on its merits. The Master then orders that the case be placed on the list of cases awaiting trial, except where, owing to urgency, the Chief Justice considers that the case must be immediately fixed for hearing Foreign Litigants Parties to court proceedings who are not domiciled in Mauritius usually designate a representative for their court appearances. Such a representative must be granted a power of attorney authorising him to represent the party 8. In case the deed of appointment is a foreign one, the representative appointed shall deposit the same with a notary in Mauritius before any use 9. It is also common for defendants to move for security in respect of payment of costs when plaintiffs are foreigners. The defendant has only to prove that: (a) The plaintiff is a foreign citizen and; (b) The plaintiff does not own any immoveable property in Mauritius 10. Such a move from a defendant must be made before the plea on the merits is served 11, otherwise the defendant is deemed to have waived his right to security. 6. Disclosure of Evidence As noted above, Particulars are usually used as a medium through which evidence is exchanged from one party to the other. It is also the current practice for one party to indicate where such evidence is located for inspection from the other party. In case a party intends to adduce any other documentary evidence, he must, 4 weeks before the hearing, serve on the other party s attorney a notice signed by 6 See SCR, Rule See SCR, Rule See Article 421 of the Code de Procedure Civile. 9 See Section 3 of the Deposit of Powers of Attorney Al-Rawas I.S.A.A v Al Tani HH.S.K.B.H. & Ors 2013 SCJ In limine litis.

5 his attorney, describing the documents and stating where the documents may be examined Administration of Evidence Parties are not allowed to adduce any evidence other than that which relates to the facts as averred in the pleadings 13 (including the particulars). Tender of Evidence found in the pleadings (i.e. Plaint with Summons, Plea or Reply), accordingly contains an invitation to every other party calling upon him to agree in writing that he admits such evidence to be what it appears to be, namely that a document which is stated to: (a) (b) (c) be an original was written, signed or executed as it purports to have been; be a copy is a true copy; and have been served, sent or delivered. Where the other party does not signify his agreement within a reasonable time, the Court may order that the costs of proving a document, which is sufficiently proved at the trial, be paid by that party, whatever may be the result of the case 14. Moreover, all evidence will be kept by the Master in the custody of the Court 15. Regarding the evidence of witnesses, this is given orally at the trial. The witness is first examined-in-chief. Then, he is cross-examined by opposing counsel before being re-examined on issues arising from the cross-examination. 8. Remedies The Supreme Court may order damages to be paid. The Supreme Court may, in a commercial case, for example, an alleged breach of intellectual property rights, in addition to the granting of injunctive reliefs, order the defendant to pay damages. 9. Enforcement After delivering a judgement or making an order for the payment or money, the Master will, at the request of the party who has obtained the judgment or order, 12 See SCR, Rule See SCR, Rule 30(1). 14 See SCR, Rule See SCR, Rule 30(2).

6 issue under the seal of the Court a warrant of execution in such form as he may specify 16. Such a party usually has 21 days from the date of the judgement to make this request 17 and, in case of a default judgment, the time limit for the request is 6 months 18. The warrant of execution can be in the following forms: (a) (b) The seizure and sale of the property of the losing party: Moveable property needs to be seized. In case the sale of moveable property is not sufficient to pay the judgement debt, the judgement creditor may proceed with seizure of the immoveable property of the judgement debtor; By Attachment: Saisie Arrêt where the property of the judgement debtor is found with a third party; (c) For bankruptcy and company liquidation, the appointment of a receiver. 10. Appeal Appeals are usually heard by the Court of Civil Appeal, which is another division of the Supreme Court. The Court of Civil Appeal consists of 2 or more judges excluding the judge who gave the judgement, which is subject of the appeal. The Court of Civil Appeal hears and determines all appeals from the decisions of the Supreme Court sitting as Court of first instance in civil proceedings (here the Commercial Division). For a party to appeal to the Court of Civil Appeal, he will have to get the leave of the judge in first instance. If leave to appeal is refused, then a second attempt for leave may be made to the Court of Civil Appeal. If a party to the case wishes to appeal to the Court of Civil Appeal, he must serve a notice of appeal on the other party to the case and lodge his appeal in the Registry within 21 days from the date of the judgment or an order appealed from. Moreover, prior to serving the notice of appeal, the Appellant must appear before the Master and enter in a binding recognizance for the certain sum. Within 15 days of lodging the Appeal, the Appellant must pay for the drawing up of the records. The grounds of appeal must be served on the Respondent and on the Master. 16 See SCR, Rule 44(1). 17 See SCR. Rule 42(1. 18 See SCR, Rule 43(3).

7 If the Appellant is not satisfied with the final decision of the Court of Civil Appeal, he may have recourse to the Judicial Committee of the Privy Council with the leave of the Supreme Court, which in any case will impose conditions. These conditions must be fulfilled before final leave is granted. 11. Statutory Demand under the Insolvency Act Instead of lodging a Plaint with Summons on the debtor, the creditor may cause a Statutory Demand to be served on the aid debtor. A statutory demand is a procedure by which a creditor to whom a company is indebted in the minimum sum of Rs100,000 (approx. 2,028) can establish that the company is unable to pay its debts. Failure to comply with the statutory demand with the prescribed delay of one month will constitute a presumption of insolvency and thus a ground for the liquidation of the company. 19 The statutory demand gives to the company the opportunity to pay the debt, or enter into a compromise or otherwise compound with the creditor or give a charge over its property to secure payment of the debt 20 and this within a month of the date of service or such longer period as the Court may order. 21 If the debtor does not agree with the content of the statutory demand, it is open to it to apply to the Court to have the statutory demand set aside and this within 14 days of the date of service of the demand. Failure to comply with the statutory demand or to have it set aside within the statutory delay has numerous commercial consequences and repercussions. Upon the hearing of an application to set aside a statutory demand, the Court may do two things if it is satisfied that there is a debt due by the company to the creditor that is not the subject of substantial dispute, or the subject of a counterclaim, set-off or cross-demand. Firstly, the Court may order the company to pay the amount due within a specified period and in default of payment, the creditor may make an application to put the company into liquidation. Secondly, the Court may dismiss the application to set aside the statutory demand and forthwith make an order under section 102 of the Insolvency Act putting the company into liquidation. Both courses of action stem from the fact that the company is unable to pay its debt as they become due in the ordinary course of business. 12. Costs 19 See s. 102(5)(b) of the Insolvency Act. 20 See s. 180 of the Insolvency Act. 21 Ibid.

8 The general rule is that the unsuccessful party has to cover costs 22 of the winning party. The court has, however, discretion whether to award costs against the losing party or in a fit case, to order that each party should bear its own costs. Unless there is an agreement between the parties as to the amount to paid as costs to the winning party, the losing party will be served with a notice of taxation, requesting him to attend at the office of Chief Registrar of the Supreme Court on a specified day and time whereupon the successful party will proceed with the taxation of costs due by virtue of the judgement of the Supreme Court. 22 See Article of the Code de Procedure Civile.