MAURITIUS Law and Practice Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
Legal Notice There are certain circumstances in which a legal notice is mandatory as a matter of law, as follows. Contractual actions A plaintiff’s right to claim a breach of contract may not accrue unless prior notice has been given calling upon the defendant to perform its obligations. This require- ment is dispensed with where the contract itself has excluded it or where the contractual obligation was to be performed within a time limit that has since lapsed. Actions against the State Where a party intends to sue the State of Mauritius, the plaintiff must give one month’s prior written notice of the intended action and the subject matter of the complaint before lodging a claim. The limitation period for actions against the State is two years from the date the cause of action arose where the liability of the State is being impugned for the negligence of public officers, and failure to comply with these requirements is fatal to the action. Pre-Action Steps There are also procedural pre-action steps required in specific cases, as follows. Service outside the jurisdiction Where proceedings are to be served on a defend- ant domiciled outside Mauritius, the plaintiff must first obtain leave from the judge in chambers by way of ex parte application by praecipe to serve proceedings outside the jurisdiction. The application must dem- onstrate a good cause of action, identifying where the defendant may be found, indicating whether the defendant is a Commonwealth citizen, and stating the grounds of the application. Judicial review An applicant must have exhausted all available alter- native remedies, such as appeals before an execu- tive body or tribunal, before the court will entertain a judicial review application. 2.4 Stages of Court Proceedings Court proceedings in civil cases typically differ based on the nature of the action entered and the relief
Under Section 76 of the Constitution, the Supreme Court of Mauritius has unlimited jurisdiction to hear and determine civil and criminal proceedings under any law, except matters governed by disciplinary law, as well as any other jurisdiction conferred by the Con- stitution or legislation. The Supreme Court is also divided into several divi- sions – namely: • the Bankruptcy Division/Commercial Division; • the Family Division; • the Financial Crimes Division; The Supreme Court also exercises appellate jurisdic- tion over lower courts in both civil and criminal mat- ters, as well as over specialised tribunals such as the Revenue Tribunal and the Environment and Land Use Appeal Tribunal. Decisions of the Court of Civil Appeal, the Court of Criminal Appeal, and certain decisions of the Supreme Court (including matters involving public law, interna- tional arbitration and appeal decisions) may be fur- ther appealed to the Judicial Committee of the Privy Council, which serves as the highest court of appeal for Mauritius. 2.3 Pre-Action Conduct As a general rule, there are no mandatory pre-action requirements in Mauritian Law that must be satisfied prior to commencing proceedings, save for certain exceptions provided for by law. • the Land Division; and • the Mediation Division. However, in practice, most litigants are expected to serve a legal notice ( mise en demeure ) on the default - ing party before commencing proceedings. The mise en demeure , which is drafted and signed by an attor- ney-at-law, typically sets out the litigant’s claim and calls upon the defaulting party to remedy the breach, failing which proceedings will be commenced together with a claim for interest. Interest may only be claimed as from the date of service of the mise en demeure in most cases.
342 CHAMBERS.COM
Powered by FlippingBook