MAURITIUS Law and Practice Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
sought. Usually, the process in an ordinary claim would be as follows: • the plaintiff files the initiating process and pays the related court fees; • the initiating process is served on the other parties to the case; • the other parties put in an appearance, either personally or through their legal advisers, to inform the court whether the case is defended and, if so, whether they will retain the services of legal advis- ers; • the other parties may ask for particulars of the claim in a demand of particulars, and the plaintiff follows with an answer to particulars; • further exchanges of particulars may take place, limited to issues arising from the first round of exchange of particulars; • the other parties then file their plea, which may contain a counterclaim; and • if there is a counterclaim, the plaintiff can ask for particulars of the counterclaim, which must be answered by the counterclaimant before the plain- tiff files its plea to the counterclaim. The exchange of these pleadings is overseen by the court, which also rules on any procedural issues that may arise. In cases where the proceedings are lodged by way of a praecipe or motion paper, which are supported by affidavits, affidavits are exchanged between the par- ties by way of pleadings, as opposed to the exchange of particulars. After the pleadings stage and before the case is heard on the merits, parties exchange their list of witnesses in accordance with the statutory delay (depending on the jurisdiction they are before) and give advance notice of the documents that will be tendered during the hearing. The trial or hearing stage is the stage whereby both parties set out their case, witnesses testify, and evi- dence is examined. After the hearing or trial, the judge or magistrate will need to deliver a judgment.
For a civil case, the standard of proof is generally a balance of probabilities (more likely than not) and, except in the case of presumptions established by law, the burden of proof lies with the party making a claim. 2.5 Confidentiality Section 10 of the Constitution of Mauritius guarantees litigants the right to have their case heard in public. Nonetheless, exceptions to this principle exist – appli- cations made before the judge in chambers are ordi- narily heard in private. In certain cases, the court may exercise its discretion to hold proceedings in private where the proceedings relate to a child, for reasons of national security or where the proceedings involve a secret process. As regards disputes that are confidential, it must be noted that, while proceedings under the International Arbitration Act 2008 are in principle held in public, the Supreme Court has the power to make a confidential- ity order pursuant to that Act, by virtue of which hear- ings may be conducted in private. 2.6 Interim Relief The Supreme Court may grant interim relief both in the exercise of its equitable jurisdiction and pursuant to applications brought under the Code of Civil Pro- cedure or the MCC. Under the Code of Civil Procedure, an applicant may seek provisional attachment orders pursuant to saisie - arrêt (seizure order) or saisie conservatoire (conserva- tory seizure) procedures before the judge in cham- bers, provided that the applicant is able to establish a clear legal right and that the respondent does not have a valid defence to the claim. Interim relief may also be sought under the equita- ble jurisdiction of the court, in the form of prohibitory injunctions, freezing orders and disclosure orders, among others. Applications for such relief are made before the judge in chambers. In determining whether to grant such relief, Mauritian courts often apply the same tests and criteria as those applied by English courts.
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