Litigation 2021 Comparisons

Last Updated December 04, 2020

Law and Practice

Authors



BLC Robert & Associates Ltd is a leading independent business law firm in Mauritius. The firm has eight partners and over 30 locally and internationally trained lawyers. It is a member of the Africa Legal Network (ALN), which is recognised by international directories as the leading legal network in Africa. The firm has four main practice areas, which are corporate and M&A, banking and finance, financial services and compliance, and dispute resolution. The firm offers the full service of attorney and counsel in a range of commercial disputes, whether before the courts or arbitral tribunals. With the promulgation of the International Arbitration Act 2008 and the setting up of institutions geared for international commercial arbitration in the jurisdiction, the firm has built its capacity in that area and has handled a range of high-value complex arbitrations in contractual disputes, construction, hospitality, oil and gas, and private equity.

Mauritius has a hybrid legal system, reflecting its past colonisation by both France and Great Britain. The main areas of private law are based on a civilian model and contained in French-inspired codes that were enacted in the early nineteenth century (Civil Code and Commercial Code). At the same time, a French-inspired Code of Civil Procedure had also been enacted. The substantive criminal law was also originally based on a Criminal Code enacted by the French administration – it is still in existence and in force today, although it has been amended over the years.

As the island lived under British rule and after its independence in 1968, it adopted a Westminster-style of passing legislation; in that respect, several statutes of English inspiration have been enacted, eg, the Companies Act. As a general rule, matters of evidence and criminal procedure also follow English rules. It is commonplace for judges and magistrates to refer to both English and French sources of law, in the appropriate contexts, when applying Mauritian law to a case.

Trials are conducted in an adversarial manner. Submissions at first instance are made orally but it is not uncommon, and as a matter of discretion of the trial judge or magistrate, to require written submissions after evidence has been adduced. In appeals before the Supreme Court, applications made under the Supreme Court (International Arbitration Claims) Rules 2013 and appeals before the Judicial Committee of the Privy Council, skeleton arguments are required to be filed in advance of the hearings and are supplemented by oral submissions.

Section 76 of the Constitution provides that there shall be a Supreme Court for Mauritius having unlimited jurisdiction to hear any civil or criminal proceedings under any law other than a disciplinary law and such jurisdiction and powers as may be conferred upon it by the Constitution or any other law. The Supreme Court consists of the Chief Justice, the Senior Puisne Judge and Puisne Judges.

The Supreme Court also exercises appellate jurisdiction over the lower courts.

Supreme Court Divisions and Lower Courts

The Supreme Court includes a number of divisions, namely:

  • the Court of Civil Appeal;
  • the Court of Criminal Appeal;
  • the Bankruptcy Division;
  • the Commercial Division;
  • the Family Division;
  • the Financial Crimes Division; and
  • the Land Division.

The lower courts are the District Courts (located in various districts of Mauritius), the Intermediate Courts (located in the capital Port-Louis) and the Industrial Court. The criminal jurisdictions of District Courts and the Intermediate Court depends on the seriousness or nature of the offences committed, whereas the civil jurisdictions of those Courts depends on the amount in dispute: in civil cases, a District Court has jurisdiction over disputes of up to MUR250,000 (USD1 = approximately MUR40) and the Intermediate Court has jurisdiction over disputes of up to MUR2, milion. The Industrial Court hears industrial disputes under specified enactments and there is no monetary limit for the amount that can be claimed before it.

A District Court shall have jurisdiction in any civil action, where the sum claimed or matter in dispute does not exceed MUR100,000, to hear and determine the action in accordance with a small claims procedure set out in Part IIA of the District and Intermediate Courts (Civil Jurisdiction) Act.

Several statutes also make provision for the setting up of tribunals or commissions to deal with specialised areas of law. The provisions of the statutes can provide for a right of appeal or judicial review before the Supreme Court.

The Court of Civil Appeal and the Court of Criminal Appeal hear appeals from a decision of a Supreme Court judge in the exercise of the latter’s original civil or criminal jurisdiction (as appropriate).

Appeals from a decision delivered by two or more judges can only be heard by the Judicial Committee of the Privy Council sitting in London.

Court proceedings, their records and judgments are generally public. Certain proceedings are held in private such as those before judges in chambers and, where the Court so orders, applications under the Supreme Court (International Arbitration Claims) Rules 2013. Section 161A of the Courts Act empowers a judge or magistrate, where he considers it necessary or expedient to exclude from proceedings (except the announcement of the decision) any person other than the parties to the trial and their legal representatives:

  • in circumstances where publicity would prejudice the interests of justice or of public morality;
  • in order to safeguard the welfare of persons under the age of 18;
  • in order to protect the privacy of persons concerned in the proceedings; or
  • in the interests of defence, public safety or public order.

A legal representative must be qualified as a barrister or attorney under the Law Practitioners Act. Barristers have unlimited rights of audience whereas attorneys have rights of audience before District Courts, judges in chambers, the Master’s Court and the Bankruptcy Division of the Supreme Court. In a specific case, a foreign advocate may have a right of audience subject to obtaining permission from the Chief Justice.

Mauritian law is silent on third-party funding and there is no applicable restriction on such funding.

This is not applicable in Mauritius.

This is not applicable in Mauritius.

This is not applicable in Mauritius.

This is not applicable in Mauritius.

Contingency fees are permitted for either barristers or attorneys. In the case of attorneys, their Code of Ethics provides that it must be reasonable and the practice is for it to be 10% of the amount recovered. In the case of barristers, this cap of 10% is formally recorded in their Code of Ethics.

This is not applicable in Mauritius.

As a matter of procedure, there is no obligatory or recommended pre-action protocol that needs to be followed and non-compliance with which could have cost consequences.

As a matter of substantive law, a plaintiff cannot sue a defendant for breach of contract unless the plaintiff has prior to such action requested the defendant to perform the contract. Exceptions to that are where the contract has dispensed with such prior notice or where the contractual obligation had to be performed within a time limit which has lapsed.

For certain applications, eg, judicial review, actions are not possible if all other remedies have not been exhausted (eg, appeals before an executive body or tribunal).

Before a case is entered against a foreign defendant, leave of the Judge in Chambers to enter the action and serve it on that party must be obtained prior to the case being entered.

In suits against public officers in the execution of their public duty, persons engaged or employed in the performance of any public duty or persons acting in aid of public officers/persons employed or engaged in the performance of any public duty, no civil action, suit or proceeding shall be instituted unless one month’s previous written notice of the action, suit, proceeding and the of the subject matter of the complaint has been given to the defendant.

The general rule for personal actions is ten years from when the plaintiff has an actionable claim against the defendant, although certain statutes provide for shorter prescription periods.

The prescription period for actions in rem is 30 years.

Under Section 4 of the Public Officers Protection Act, every civil or criminal action, suit, or proceeding, by a person, other than the State, for any fact, act or omission against public officers or persons engaged in the performance of any public duty or persons assisting such persons shall, under pain of nullity, be instituted within two years from the date of the fact, act, or omission which has given rise to the action, suit, or other proceeding.

Applications for judicial review of an executive decision must be made promptly and in any event within three months of the decision being challenged.  The real requirement is one of promptness and an application may be set aside even if made within the three-month limit.

Any defendant with Mauritian nationality is amenable to the jurisdiction of the Mauritian courts, even in respect of obligations incurred outside Mauritius.

In respect of a foreign defendant, the Supreme Court will allow initiation and service of proceedings against it if one of the conditions in the Courts (Civil Procedure) Act are met, namely:

  • the whole subject matter of the action is immovable property situate within Mauritius;
  • an act, deed, will, contract, obligation or liability affecting immovable property situate within Mauritius, is sought to be construed, rectified, set aside, or enforced in the action;
  • relief is sought against a person ordinarily resident within Mauritius;
  • the action is founded on a breach or alleged breach within Mauritius of a contract wherever made, which ought to be performed within Mauritius;
  • an injunction is sought as to anything to be done within Mauritius or a nuisance within Mauritius is sought to be prevented or removed, whether damages are or are not sought;
  • any person out of Mauritius is a necessary or proper party to an action properly brought against some other person duly served within Mauritius; or
  • any action, relief, dispute, third party claim in which a corporation holding a Global Business Licence, an Authorised Company, a collective investment scheme or a protected cell company is one of the parties.

If an action concerns a contract containing a jurisdiction clause in favour of another jurisdiction, the Mauritian court may decline jurisdiction unless the choice of jurisdiction is against the public policy of Mauritius.

If the action concerns a dispute which is covered by the scope of an arbitration clause, the Mauritian Court will decline jurisdiction if the defendant raises the objection before filing a defence on the merits (in the case of a domestic arbitration). In the case of an international arbitration, the defendant must (again, before filing a defence on the merits) ask that the case to be referred to a panel of three Designated Judges of the Supreme Court to decide whether the parties should be referred to arbitration or whether, on a prima facie basis, there is a very strong probability that the arbitration clause is null and void, inoperative or incapable of being performed.

Before the Supreme Court, the originating document is a plaint with summons. In the lower courts, the originating document is called a “proecipe” (which serves the same purpose as a plaint with summons).

Before a judge in chambers, the originating document is also called a proecipe but it is a simpler document setting out the prayers sought by the applicant. The proecipe must be supported by affidavit evidence.

Certain procedures which require urgency (eg, judicial review) or which are made under specific enactments (eg, the Companies Act or the Insolvency Act) are initiated by way of motion paper supported by affidavit evidence. In judicial review applications, the application must also be accompanied by a statement setting out the grounds of review.

The general rule is that originating documents and other pleadings can be amended before the hearing as long as the amendment does not cause prejudice to other parties and the latter get an opportunity to respond to the amendments. This follows the principle that the purpose of pleadings is to identify the real issues in controversy which the trial court has to determine.

A judge will unlikely exercise discretion in order to allow amendments made after witnesses have started to depone or those made in order to circumvent a valid objection in law which another party has raised.

When service is effected in Mauritius, it has to be effected by a private usher retained by the plaintiff or by a court usher. The usher’s return is conclusive evidence that service has been effected (if successful). In the event that service is unsuccessful, the court will order that fresh service be attempted and if there are still unsuccessful attempts, the court may order that the defendant be informed of the case by way of substituted service in several forms which may include publication in newspapers. For service on a company, good service is effected by leaving the documents at its registered office, by delivering them with one of its directors, by delivering them with an employee at the head office or principal place of business, or in accordance with a prior agreement with the company.

When ordering that service may be effected on a foreign party in accordance with the provisions of the Courts (Civil Procedure) Act, the Supreme Court will order that such service be effected in accordance with the laws of the country where service is being effected. It is the plaintiff who bears the responsibility of arranging service on a foreign party, including arranging for the evidence of service to be properly legalised before it can be relied upon before the Mauritian Court.

If a defendant does not respond to a lawsuit, the Court orders the case to be heard in the absence of the defendant but would also order that, before the hearing, the defendant is served with a “notice of trial”.

At the hearing, the continued absence of the defendant does not mean that judgment is automatically given in favour of the plaintiff. It is still incumbent on the plaintiff to prove its case on the balance of probabilities and call one or more witnesses to give evidence and produce documents in support of its case. A default judgment will only be delivered if the Court is satisfied that the plaintiff has indeed established its case according to the required standard of proof.

Class actions are not permitted in Mauritius. All persons who seek a remedy from the Court need to be individually named as parties, although they may select one of them to be the representative of the others during the case (eg, for the purpose of attendance in court and/or giving evidence).

There is no requirement to provide clients with a cost estimate at the outset. The obligation of law practitioners is to charge, as a matter of ethics, what is fair and reasonable and the fee arrangement must be fully disclosed to the client.

It is possible, before a trial or substantive hearing of a claim, for a party to apply to a judge in chambers or to magistrate to obtain interim relief pending the determination of the main case. Such reliefs are not limited to case management issues and are generally granted in order to preserve a status quo ante and, in cases where injunctive relief is sought, damages must not be an adequate remedy.

It is also possible, before the case is ready to be heard on its substantive merits (ie before it is “in shape”), to obtain procedural directions (either at a hearing or by way of court circular] either from the trial judge (in the case of cases before the Commercial or Family Divisions of the Supreme Court), the trial magistrate (in cases before the District Courts or Intermediate Court), the Master and Registrar (in cases before other divisions of the Supreme Court) and the Chief Justice (in cases entered by way of motion).

A trial judge also has a discretion to order case management directions ahead of or during a trial.

The Courts do not deliver early judgment on some issues only and prefer to deal with all the issues in one go.

The Court may allow certain points to be raised at the outset (called “in limine litis”) which can be heard and determined without evidence (ie, on the face of the plaint or other originating document) or after production of a limited amount of evidence. The defendant must, generally, at the time of filing the plea in limine, also file a plea on the substantive merits of the case and the trial judge/magistrate may then hold a hearing to hear arguments as on the plea in limine.

Objections as to the jurisdiction of the court must be taken before any defence on the merits is advanced and it is permissible for a defendant to raise such an objection even without putting in a defence on the merits. The court proceeds to hear the objection on jurisdiction and a limited amount of evidence may be adduced (usually, it is the contract which contains an arbitration clause or a choice of court clause). Similarly, applications for security for costs are dealt with in limine.

ResponseDispositive motions that are commonly made are the following:

  • that the subject matter of a plaint is time-barred;
  • that an appeal has been lodged and/or served outside delay;
  • that the Court does not have jurisdiction, eg, because of the existence of an arbitration clause of valid choice of court clause.
  • there is a more appropriate forum (forum conveniens) to try the case, eg, having regard to factors such as the location of parties and witnesses, the law which has to be applied to the obligations in issue and whether a foreign court has already accepted jurisdiction to hear the case;
  • that the case is closely connected with pending litigation before another competent jurisdiction outside Mauritius (litis pendens);
  • that the subject matter of the case is res judicata, ie, raising the same cause of action between the same parties in a previously decided case;
  • a motion to strike out certain paragraphs of pleadings on the grounds that they are unnecessary, made vexatiously or made with unnecessary prolixity;
  • a motion to strike out a pleading on the ground that it does not disclose a reasonable cause of action or defence;
  • a motion to dismiss a case on the ground that it constitutes and abuse of process of the court; and
  • a motion by one party to the case to be put out of cause on the ground that it is not a necessary and proper party to the case.

If a non-party wishes to intervene in proceedings, they can apply to a judge and show cause that he has an interest in or is a necessary party to the case.

A defendant to a case, before filing a defence to the plaintiff’s claim, may file a third-party procedure against a non-party requesting that the latter takes up its defence and indemnifies it. The third-party procedure can itself be a contested procedure.

On application by one of the parties to an existing case, the court has a discretion to order that the name of a party who should not have been joined in action to be struck out and for a party who should have been added to be joined as a party and served with the proceedings.

If the plaintiff is a foreign party, the case does not involve a commercial matter and the plaintiff does not own immovable property in Mauritius, the Court will order the plaintiff to furnish security for costs as a matter of course. The defendant may support the amount claimed as security by way of affidavit evidence and the amount can be contested by the plaintiff – ultimately the amount of security will be in the discretion of the trial judge who will balance the need to provide security against the objective of not stifling a plaintiff to pursue its claim.

In other cases, the Court also retains a discretion to order security for costs (whether the plaintiff is Mauritian or foreign), eg, if the plaintiff is shown to be impecunious.

A judge dealing with costs of interim applications/motions will usually order the costs to be the costs in the main proceedings.

The usual timeframe to deal with a motion may vary be within a few days and up to 12 months, depending on whether the motion is contested, requires evidence to be exchanged by way of affidavits and submissions to be heard. A party may request that a motion is dealt with on an urgent basis and it will be within the discretion of the judge whether to accede to such request.

A party to a case may apply for particulars of a plaint or defence and for inspection of documents on which the other party intends to rely in the case.

In addition, in any cause or matter, the Court may, on the application of either party or on its own motion, inspect a movable or immovable property or make a visit to the locus.

The court may, especially where fraud is alleged, make a Norwich Pharmacal order against a non-party where:

  • a wrong has been carried out or arguably carried out by an ultimate wrongdoer;
  • there is a need for an order to enable an action to be brought against the ultimate wrongdoer; and
  • the person against whom the order is sought must:
    1. be mixed up in so as to have facilitated the wrongdoing; and
    2. be likely to be able to provide the information necessary to enable the wrongdoer to be sued.

See 5.1 Discovery and Civil Cases.

Each party who intends to rely on documents in support of its claim or defence must communicate those documents to the other parties prior to the trial at the stage of exchanges of pleadings. Each document then has to be produced by witnesses called by the party in court.

Both legal advice privilege and litigation privilege are recognised in Mauritian law and with regarding to the standing of an in-house counsel under the Law Practitioners Act, the privilege may be restricted to advice provided to counsel’s employer.

There are not many cases which have considered all the nuances surrounding legal professional privilege. It is likely that Mauritian courts may opt to follow the principles set out in English case law.

Disclosure may be refused as an exception to the general rule where a matter is protected by a statute as confidential or official secret. Disclosure may still be made in circumstances made permissible by the statute or by order of the Judge.

A judge of the Supreme Court has a broad power to issue injunctions, subject to the power of the Supreme Court to vary or discharge that order.  The judge may issue a number of types of injunctions including prohibitory injunctions, mandatory injunctions, Mareva injunctions, Anton Piller orders and anti-suit injunctions.  Given that those types of orders are equitable remedies, Mauritian courts tend to follow English law principles governing such orders.

Common Interim Remedies

The most common types of interim remedies granted are prohibitory orders, provisional attachment orders and Mareva injunctions aimed at preserving a status quo ante and/or to preserve assets pending the determination of a main case.

Prohibitory orders

Prohibitory orders are usually granted where:

  • there is a serious issue to be tried;
  • damages would not be an adequate remedy; and
  • the balance of convenience lies in favour of granting the interim injunction.

Mareva orders

Mareva orders are granted where:

  • the applicant has a good arguable claim;
  • there is a real risk of dissipation of assets by the respondent; and
  • it is just and convenient to grant the order. 

Provisional attachments

Provisional attachment orders may be granted where the applicant demonstrates that it has a claim which is certain in principle and they must be followed by applications to validate the attachment at which point the latter may be contested by the debtor and/or garnishees.

Interim injunctions

The applicant for an interim injunction has to comply with certain undertakings, namely:

  • to make a full and frank disclosure of material facts at the time of making the application;
  • to enter a main case; and
  • to give an undertaking in damages should it later turn out that the injunction was wrongly granted. 

A judge in chambers may discharge an interim injunction if one or more of the above undertakings are not complied with.

When an application for interim injunction is made, the file is allocated to a judge in chambers who would examine the papers to decide whether such an order should be granted pending a returnable date when the respondent can appear before them. The decision of whether to grant the interim order is usually given within one or two days of the application.

In certain very exceptional cases (not usually concerning commercial cases but mainly those relating to restraint of publication in the press or those concerning personal liberty), an applicant’s attorney may contact the Chief Justice or the Senior Puisne Judge for a judge to be available outside normal hours.

Injunctive relief can be obtained on an ex parte basis.

An applicant may be held liable for damages suffered by a respondent if the injunction is later discharged. There is no reported case where an applicant has been found to be so liable.

In appropriate cases, the judge in chambers has a discretion to order that an undertaking in damages be fortified by means of a cash deposit in court or a bank guarantee.

A judge in chambers has the power to order a worldwide freezing order. In practice, it is more common for the judge to freeze assets which are located in Mauritius and judges are reluctant to issue worldwide freezing orders.

It is possible for injunctive relief to be granted against third parties.

A respondent who fails to comply with the terms of an injunction may be held to be in contempt of court and either ordered to pay a fine or (in very exceptional cases) be sentenced to imprisonment. In court proceedings, the trial judge would also have a discretion not to allow the respondent to be heard until it has purged the contempt of court.

Civil trials in Mauritius take place in an adversarial format. Each party calls its own witnesses to give evidence and produce documents in support of its case, with counsel for the other parties being able to cross-examine those witnesses. After a party has called all its witnesses, it closes its case and when all parties have closed their cases, their respective counsel make oral submissions on the facts and the law and the judge reserves his or her judgment. In certain complex cases, the judge may also request that oral submissions be supplemented by written submissions.

Hearings of cases entered before judges in chambers or those entered by way of motion and affidavit, the judge will consider the evidence as set out in affidavits and the submissions (written and/or oral) of counsel. There is no live examination of witnesses on the contents of their affidavits unless a motion is made to that effect and the judge grants the motion in exceptional circumstances.

Case management is left to the discretion of the trial judge.

There are no jury trials in civil cases in Mauritius.

In civil and commercial matters, the Court may be quite flexible on the admissibility of evidence but there are certain principles to bear in mind:

  • contractual obligations worth more than MUR5,000 need to be supported by a written document and parol evidence is not admissible;
  • in any claim to rent or indemnity for the occupation of immovable property, oral evidence shall, when a lease is denied and is not completely established by writing, be admissible to prove or disprove the occupation and the amount or payment of the indemnity, and the party suing shall be entitled to the indemnity although it may result from the oral evidence given that the occupation existed under a lease; and
  • the Courts Act in sections 181 to 181E makes provision (subject to conditions) for the admissibility of the following items:
    1. copies or print made from microfilms;
    2. out-of-court statements;
    3. documents being or forming part of records compiled by a person acting under a duty; and
    4. statements produced by computers.

Regarding contractual obligations worth more than MUR5,000, if no writing exists, the party seeking to prove such obligation may adduce other forms of written evidence as “beginnings of proof in writing” and which from which one could reasonably infer the existence of the obligation.  In cases where even beginnings of proof are not available, a party may call the other party or a representative of the other party to examine the latter on personal answers; the answers are recorded by the court and any admission in there can be used as proof of the existence of an obligation

In relation to an out-of-court statement, a document being or forming part of a compiled record or a statement produced by a computer, it may be proved by the production of that document or by the production of a copy thereof, or the material part thereof, authenticated in such manner as the court thinks fit.

On issues which require expert evidence, each party will call its own expert witnesses. The report of each expert witness is typically tendered before the trial. The Court will not itself seek expert testimony. It is open to the parties to agree to file joint expert reports in the proceedings.

Access to hearings is allowed to members of the public and transcripts and minutes of proceedings can be consulted at the Registry of the court dealing with the case. Records and minutes of cases before judges in chambers are not available to the public whilst records and transcripts of cases before the Commercial Division are not easily accessible without justification.

The judge acts as an arbiter to ensure that rules of evidence and procedure are being followed and that neither counsel embarks in irrelevant lines of questioning. A judge may sometimes ask clarificatory questions from a witness but would be cautious about the extent of doing so in order to avoid a later argument that a party has not had a fair hearing.

After hearing the evidence and considering submissions of counsel, the judge would typically reserve judgment. In straightforward matters, the judge may deliver a ruling from the bench. It is not the usual practice of Mauritian Courts for the judge to give a ruling on the bench and provide reasons at a later date.

The typical duration of trials in commercial disputes is one to two years from commencement.

Court approval is not required to settle a lawsuit.

Parties often choose that the settlement agreement that they have reached be read out in court and made a judgment of the court. Such agreements are usually read by counsel in Court and the parties who are present in Court ratify it; if the parties are not present, judges and magistrates may allow counsel or attorneys to inform the Court that an agreement has been reached and the agreement is recorded without the parties formally ratifying it. The agreement then has the same effects as a judgment with the consequences that:

  • any breach of the agreement would be a contempt of court; and
  • if there is a breach of the agreement, the innocent party can proceed directly to execution of the agreement against the assets of the defaulting party without needing to initiate fresh proceedings for breach of contract.

There is also a Mediation Division of the Supreme Court where any agreement reached between the parties must be set down in writing and signed by the parties and the mediation judge for them to be valid.

The parties can elect that the agreement remain confidential and agreements reached before a mediation judge are confidential. A carve-out from the confidentiality obligation is usually included/exists to allow disclosure to a trial court which may have to deal with a breach of agreement or contempt of court complaint.

If a settlement agreement is not made a judgment of the court, the innocent party would need to initiate a fresh action against the defaulting party for breach of contract.

If the settlement agreement was made a judgment of the court, it can be enforced using the usual execution methods against the assets of the judgment debtor and/or the judgment creditor may initiate contempt of court proceedings against the judgment debtor.

Being a contract, the settlement agreement can be set aside on the same grounds as any other contract, namely:

  • physical or economic duress;
  • intentional misrepresentation (which may include intentional concealment of material acts or;
  • mistake.

A party may then initiate court action within five years to set aside the agreement. In cases of duress, the five-year time-limit begins where the duress has ceased and in cases of misrepresentation it begins where the misrepresentation became known.

If the settlement agreement is reached by way of a “transaction” under the Civil Code, there are special provisions for such agreements to be set aside.

The awards or remedies that are usually available to a successful litigant are as follows:

  • payment of a sum of money or damages;
  • interest on the judgment debt;
  • declarations of the existence of certain facts;
  • prohibitory injunctions;
  • mandatory injunctions;
  • specific performance; and
  • costs

There are no punitive damages provided for in Mauritian law. The Courts would seek to provide full compensation (reparation integrale) to a plaintiff for prejudice suffered – in breach of contract claims, the measure of damages is foreseeable loss unless the breach is intentional or grossly negligent, in which case the measure is all the damages that are a direct and certain consequence of the breach. In tort cases, the plaintiff is entitled to recover damages representing the direct and certain consequences of the tort.

In cases involving the payment of a sum of money, interest may according to the provisions of the Civil Code run as from the date on which a request to pay was served on the defendant. The trial judge retains a discretion whether pre-judgment interest should include the length of the trial depending on the conduct of the plaintiff (in particular whether the latter has been diligent in pursuing its case). It is not uncommon for the trial judge to award interest to the winning party as from the date of judgment only.

In cases before the Industrial Court, the Court may award interest as from the date of dismissal. In cases of road accidents or accidents at work, the court may award interest as from the date the action was started unless there are good reasons to order interest as from the date when the pleadings were closed.

The typical mechanisms are as follows:

  • execution by way of warrant to levy;
  • execution by way of writ of execution;
  • attachment (eg, of receivables or bank accounts);
  • seizure and sale of immovable properties in accordance with the provisions of the Sale of Immovable Property Act; and/or
  • filing for the bankruptcy or winding up of a judgment debtor.

In respect of Intermediate Court judgments, movable properties must be seized and sold before immovable properties are sold.

An application is made to the Supreme Court by way of motion and supporting affidavit. The evidence has to show that the conditions for exequatur of the foreign judgment are met, namely:

  • the foreign judgment is still valid and capable of execution in the country where it was delivered;
  • the foreign judgment must not be contrary to any principle affecting public order (meaning international, rather than domestic, public order);
  • the defendant must have been regularly summoned to attend the proceedings in which the foreign judgment was delivered; and
  • the Court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.

Once the Mauritian Supreme Court has granted the exequatur, the foreign judgment can then be enforced in Mauritius in the same way as a domestic judgment.

Mechanisms of review include:

  • In civil cases, appeals from a judge of the Supreme Court are heard by the Court of Civil Appeal.
  • Appeals from the Bankruptcy Division of the Supreme Court, the Master and Registrar, the Intermediate Court, the Industrial Court, a Magistrate or any other court or body established under any other enactment are heard by the Supreme Court exercising its appellate jurisdiction.
  • Appeals from a decision of two or more judges of the Supreme Court lie to the Judicial Committee of the Privy Council. If such appeals are possible, leave to appeal has to be obtained and not all cases are appealable before the Judicial Committee.

Appeals before the Supreme Court in its appellate jurisdiction or the Court of Civil Appeal are not conditional on leave being granted, ie, they are as of right. However, no appeal shall lie, except by leave of the Judge:

  • from an order as to costs only;
  • from an order made by consent of the parties; or
  • from an interlocutory judgment or order.

An appeal to the Judicial Committee of the Privy Council lies as of right:

  • against final decisions in civil and criminal proceedings on questions of interpretation of the Constitution;
  • against final decisions in civil cases where the matter in dispute is of at least MUR10,000 or the appeal involves a claim to or a question respecting property or a right of the value of MUR1,000 upwards;
  • against final decisions in constitutional relief cases;
  • against decisions of a bench of three Designated Judges in applications made under the International Arbitration Act or the Convention for the Recognition and Enforcement of Foreign Arbitral Awards Act; or
  • in such other cases as may be prescribed by Parliament, but not where there is a right of appeal from the Supreme Court to the Court of Civil Appeal or Court of Criminal Appeal.

In other cases, an appeal to the Judicial Committee of the Privy Council lies with leave of the Court (either from the Supreme Court or, if the latter refuses leave, special leave of the Privy Council):

  • where, in the opinion of the Court the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to the Judicial Committee;
  • against final decisions in any civil proceedings; or
  • in such other cases as may be prescribed by Parliament, but not where there is a right of appeal from the Supreme Court to the Court of Civil Appeal or Court of Criminal Appeal.

Supreme Court Appeals

An appeal from a judgment of a Judge of the Supreme Court must be lodged with the Registry of the Court and served on the respondent(s) within 21 days of the date of the judgment appealed from, unless the appellant can show good cause why it was not possible to comply with the 21-day period (in which case an extension of time must be applied for before the expiry of the 21-day period) or a statute provides otherwise. A respondent who wishes to resist an appeal shall file with the Registry of the Supreme Court and serve on the appellant a notice to resist appeal not later than two months after being served with the appeal.

District and Civil Court Appeals

Appeals against a judgment of a District Court, Intermediate Court or Industrial Court must be notified to the Clerk of that Court within 21 days of date of the judgment and the appellant has a further fortnight of giving recognisance for the costs of the appeal to file the appeal with the Registry of the Supreme Court and serve it on the respondent(s).

An appeal before the Court of Civil Appeal shall operate as a stay of execution or of proceedings under the judgment or order appealed from. In appeals before the Supreme Court in its appellate jurisdiction, a stay is not automatic and must be sought from the appellate court.

Judicial Committee Appeals

In relation to appeals to the Judicial Committee of the Privy Council, leave to appeal must first be applied from the Supreme Court. Conditional leave is first applied for and if the conditions (mainly to provide security for costs and sending the reference to the Judicial Committee) are complied with, then final leave is applied for. Once final leave is obtained, the procedure before the Judicial Committee applies.

Applications for conditional leave and final leave are made by way of motion or petition supported by affidavit evidence; the motion or petition must be made within 21 days of the judgment to be appealed from, and the applicant shall give all other parties concerned notice of its intended application. The Court considering the leave application has a discretion whether to order a stay of execution of the judgment appealed from.

The appellate court will not conduct a re-hearing of the first instance decision and hear witnesses anew. The appellate court would typically review the transcript of proceedings, the evidence adduced and consider written and oral submissions of counsel with the aim of deciding whether the lower court has committed errors of law. The appellate court will not typically overturn findings of fact unless they are perverse, in the sense that no reasonable judge or magistrate could have made such findings based on the evidence on record.

New pleadings of fact cannot be taken on appeal. It is possible to argue points of law which were not raised before the lower court.

Appeals before the Supreme Court in the exercise of its appellate jurisdiction of lower courts or before the Court of Civil Appeal are subject to the furnishing of an amount of about MUR25,000 as security for costs.

Appeals before the Judicial Committee of the Privy Council are subject to the furnishing of MUR150,000 as security for costs.

An appellate court may:

  • dismiss the appeal if none of the grounds of appeal are meritorious;
  • quash the lower court judgment if one or more grounds of appeal are well taken, and itself draw any inferences of fact and give any judgment and make any order which ought to have been made, and make such further order as the case may require;
  • quash the lower court judgment if one or more grounds of appeal are well taken and, if it thinks fit, order that the judgment or order that the judgment or order appealed from be set aside, and that a new trial be had (often before a differently constituted bench) - a new trial may be ordered on any question without interfering with the finding or decision upon any other question;
  • make such order as to the whole or any part of the costs of appeal or in the court below as seems just.

During the litigation, each party bears its ongoing costs.

The general rule is that the losing party pays the winning party’s costs. In certain circumstances, the court may consider that the justice of the case requires that no order be made as to costs, eg, where the winning party has not conducted its case diligently or where the both a claim and a counterclaim have succeeded or where parties have reached an amicable settlement early in the proceedings – this is a matter left to the discretion for the judge. The Court may also order:

  • a party to pay amounts determined by the judge for unreasonable conduct (eg, repeated applications for extension of time); and/or
  • a legal representative to pay wasted costs orders in cases of improper, unreasonable or negligent act or omission.

Costs would include counsel and attorney costs of the winning party, court filing costs, costs of attendance of witnesses and costs of ancillary pre-trial applications. Most of those items are subject to very low prescribed amounts set out in the relevant court rules such as the Legal Fees and Costs Rules 2000 and the Supreme Court (Electronic Filing of Documents) Rules 2012, therefore, in practice, the costs recovered are far from the actual legal expenses of the winning party. The exception to that are applications made in international arbitration matters, whereby the Supreme Court (International Arbitration Claims) Rules 2013 may allow a winning party to recover close to its real costs on a standard basis or indemnity basis.

The quantum of costs is taxed by the Master and Registrar, who would apply the relevant court rules and may also award to the winning party reasonable out-of-pocket expenses to the winning party such as the travel and accommodation costs of witnesses from overseas. The rulings of the Master and Registrar are rarely challenged as the amount of costs award, especially in commercial disputes, is fairly low although there may be some debate about the quantum of out-of-pocket expenses awarded (ie, whether they are reasonable or not).

The Court generally awards costs to the winning party. The quantum is then taxed by the Master and Registrar who awards the very low amounts prescribed in the relevant court rules and reasonable out-of-pocket expenses.

Interest is not usually awarded on costs.

Commercial parties are becoming more aware of the existing of alternative dispute resolution (ADR) mechanisms and are increasingly willing to try mediation and arbitration instead of litigating in courts. The main reasons are that ADR procedures are less time-consuming and can also be less costly. In the case of mediation, business relationships can also be maintained or mended.

Parties are, at any point in time, free to decide to mediate their disputes. There is, however, no compulsion to do so and no sanction for refusing to mediate.

The Supreme Court (Mediation) Rules 2010 provides a framework whereby parties can seek that their dispute be referred to mediation before a mediation judge, and to make binding and executory any agreement reached by the parties before the mediation judge. Without compulsion, any party to a civil suit, action, cause, or matter which is pending before the Supreme Court may apply (with reasons) to the Chief Justice for the action to be referred for mediation.

The Industrial Court Act also empowers a magistrate of that Court to offer guidance and advice, and to use his best endeavours to secure a settlement between parties of an existing or likely dispute. Where a settlement is reached, it is signed by the magistrate and by the parties, and it has the same effect as a judgment of the Court.

Arbitration Agreements

When the subject matter of a dispute is subject to an arbitration agreement:

  • In the case of a domestic arbitration, the court seized with the dispute will decline jurisdiction if defendant objects to the jurisdiction of the court (but before having filed any defence on the merits of the case).
  • In the case of an international arbitration, the court seized will on application of the defendant (before having filed a defence on the merits) refer the case to a panel of three Designated Judges under the International Arbitration Act. The Designated Judges will refer the parties to the arbitration unless the plaintiff shows on a prima facie basis that the is a very strong probability that the arbitration clause is null and void, inoperative or incapable of being performed. 

A proclamation is awaited of an amendment to the Courts Act to grant powers of mediation to magistrates of the Intermediate Court.

Adjudication of construction disputes is yet to be provided in legislation but there is nothing preventing contracting parties to tailor-make their own dispute resolution procedure contractually to provide for resolution by adjudication or expert determination. Expert determinations are not uncommon in valuation disputes.

Institutions offering and promoting ADR such as the Mauritius Chamber of Commerce and Industry Arbitration Centre (MARC) and the Mauritius International Arbitration Centre (MIAC) are well organised and equipped with modern and internationally-oriented rules and adequate physical infrastructure.

Domestic arbitrations are governed by the Code of Civil Procedure.

International arbitrations are governed by the International Arbitration Act (based on the Model Law on International Commercial Arbitrations), the Convention for the Recognition and Enforcement of Foreign Arbitral Awards Act (which transposes the New York Convention in Mauritian law) and the Supreme Court (International Arbitration Claims) Rules 2013 (which contains procedural rules for applications before the Supreme Court relating to international arbitration matters).

It is commonly thought that matters relating to:

  • bankruptcy and winding up;
  • taxation;
  • the capacity of persons;
  • inheritance and succession;
  • divorce;
  • custody of children; and
  • criminal proceedings are not arbitrable.

An award in a domestic arbitration may be challenged on one of the following grounds:

  • by way of appeal on law or facts if the parties had not renounced their right of appeal in the arbitration agreement;
  • by the Attorney-General if he considers that the enforcement of the award is against the public interest;
  • yhere was no arbitration agreement or the arbitration agreement was null or no longer in force;
  • if the arbitral tribunal was irregularly constituted or the sole arbitrator irregularly appointed;
  • if the arbitrator has decided the dispute otherwise than in accordance with the reference to them;
  • the principles of a fair hearing have not been respected;
  • the award fails to contain the contentions of the parties, their grounds in support of the contentions and reasons for the award;
  • the award fails to mention the names of the arbitrators and the date of the award;
  • the award is not signed by all the arbitrators or, if a minority of them refuses to sign, fails to mention that fact; and/or
  • the arbitrator has violated a rule of public order.

An award in an international arbitration may be challenged on one of the following grounds:

  • The party making the application furnishes proof that:
    1. a party to the arbitration agreement was under some incapacity or the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under Mauritius law; or
    2. it was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present its case; or
    3. the award deals with a dispute not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of submission to arbitration; or
    4. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties of, failing such agreement, was not in accordance with the International Arbitration Act.
  • The Court finds that:
    1. the subject matter of the dispute is not capable of settlement by arbitration under Mauritius law;
    2. the award is in conflict with the public policy of Mauritius;
    3. the making of the award was induced or affected by fraud or corruption; or
    4. a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the award by which the rights of any party have been or will be substantially prejudiced.

In respect of a domestic arbitration award, an application for exequatur of the award is made before the Judge in Chambers. Once the exequatur is granted, execution measures (such as seizures, attachment or winding up) can be taken in order to enforce the award.

In respect of a foreign arbitration award, an application is made before the Chief Justice for provisional registration of the award. The application and provisional order must then be served on the respondent and the latter shall have 14 days from service (or such longer period as the Chief Justice may order if the respondent has to be served outside the jurisdiction) to apply to set aside the provisional registration on one or more grounds set out in the New York Convention.

If the respondent fails to make an application to set aside the provisional registration or is unsuccessful in such an application, the award may be enforced.

The Courts Act was amended in 2020 in order to formalise in legislation a couple of Divisions that were already operating within the Supreme Court (namely the Commercial Division and the Family Division) and also to create new Divisions of the Supreme Court (the Land Division and the Financial Crimes Division). A Financial Crimes Division of the Intermediate Court has also been created. These amendments would streamline categories of disputes towards specialised judges and to increase the efficiency with which those cases are dealt with in the court system.

Following comments made by the Judicial Committee of the Privy Council in the case of Peepul Capital Fund II LLC and another v VSoft Holdings LLC [2019] UKPC 47, Cabinet has agreed to amendments being brought to the International Arbitration Act. The amendments would be aimed at restricting the ease of appeals from the Supreme Court to the Privy Council in cases involving international arbitration. A draft Bill is awaited.

Mauritius was in a period of sanitary curfew between 20 March 2020 and 1 June 2020. During that time, the movements of individuals were severely constrained and Courts were closed to the public. The Chief Justice made arrangements for urgent applications to be made via electronic means and there are reported instances of urgent cases which arose during the lockdown period being heard remotely via electronic means. Cases which were scheduled to be heard during the lockdown period were rescheduled after 1 June 2020 and, since that date, the courts have resumed normal business.

The COVID-19 (Miscellaneous Provisions) Act 2020 was passed and provided that where, under an enactment, a time is imposed to institute or lodge judicial proceedings and the time expires, or falls wholly or partly, during the COVID-19 period (being 23 March 2020 to 1 June 2020) or a period of 30 days after the COVID-19 period lapses, the judicial proceedings may, notwithstanding the time imposed, be instituted or lodged not later than such period as may be prescribed by regulations under that enactment.

BLC Robert & Associates Ltd

2nd Floor, The Axis
26 Bank Street
Cybercity
Ebene 72201
Mauritius

+230 403 2400

+230 403 2401

chambers@blc.mu www.blc.mu
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Law and Practice in Mauritius

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BLC Robert & Associates Ltd is a leading independent business law firm in Mauritius. The firm has eight partners and over 30 locally and internationally trained lawyers. It is a member of the Africa Legal Network (ALN), which is recognised by international directories as the leading legal network in Africa. The firm has four main practice areas, which are corporate and M&A, banking and finance, financial services and compliance, and dispute resolution. The firm offers the full service of attorney and counsel in a range of commercial disputes, whether before the courts or arbitral tribunals. With the promulgation of the International Arbitration Act 2008 and the setting up of institutions geared for international commercial arbitration in the jurisdiction, the firm has built its capacity in that area and has handled a range of high-value complex arbitrations in contractual disputes, construction, hospitality, oil and gas, and private equity.