MAURITIUS Law and Practice Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
7.5 Trends The adoption of a formal class action mechanism or mass claim procedure in Mauritius remains unlikely in the near future. That said, the landmark decision of the Judicial Committee of the Privy Council in Eco - Sud and Others v Minister of Environment , Solid Waste and Climate Change and Another [2024] UKPC 19 appears to have clarified the circumstances in which special- ist organisations and bodies may have representative standing in certain public law proceedings, such as judicial review, where such standing is not expressly excluded by statute. This decision may prove signifi- cant in shaping the extent to which collective interests can be advanced before the Mauritian courts. Unlike most common law jurisdictions, Mauritian law does not provide for a formal discovery process. Dis- closure of documents is instead conducted through the framework provided under the Supreme Court Rules 2000, where any party to an action before the Supreme Court may apply for particulars of the aver- ments made in the opposing party’s pleadings and request inspection of documents which that party intends to rely upon at trial. This right is available to all parties equally, meaning that both the plaintiff and the defendant may seek particulars of each other’s pleadings and inspect the documents which the other intends to adduce in evidence. 8. Evidence 8.1 Disclosure The object of particulars is to enable the party asking for them to know what case it has to meet at the trial, to save unnecessary expense and to avoid allowing parties to be taken by surprise. 8.2 Privilege Mauritian law recognises both legal advice privilege and litigation privilege as part of the applicable com- mon law principles in the jurisdiction. As Mauritian courts follow common law on this issue, the circum- stances in which privilege may be waived would be equally determined in accordance with established common law principles.
8.3 Confidentiality Mauritian law recognises the right to withhold evi- dence on grounds of confidentiality. As a general rule, disclosure may be refused where the matter in ques- tion is protected by statute as confidential or classified as an official secret. That said, disclosure may still be compelled in circumstances expressly permitted by legislation or as may be authorised by a judge’s order upon the application of a party. 8.4 Witness Evidence Witnesses in Mauritian civil proceedings are sum- moned to attend court to provide oral testimony on the facts as averred in the pleadings. Oral testimony is the primary mode of adducing evidence before the court, and witness statements are not generally accepted outside the context of applications made under the International Arbitration Act 2008 or as agreed between the parties in the context of domestic arbitration. Every witness heard in proceedings before a court is required to give evidence upon oath. Each party calls its own witnesses in support of its case. Counsel for the opposing parties may cross- examine those witnesses, with cross-examination governed by the Courts Act 1945, which permits parties to question witnesses on prior inconsistent statements in order to challenge their credibility and reliability, provided the questions are relevant. Lead- ing questions are permitted during cross-examination, subject to the requirement that they are not abusive or unfair. Re-examination is permitted following cross- examination, but is limited to matters arising from cross-examination and may not introduce new issues. The process is adversarial rather than inquisitorial. While a judge may seek clarification from a witness, the court generally adopts a non-interventionist approach and is cautious about questioning witnesses directly. Mauritian law does not provide for witness deposi- tions in the conventional sense. However, Section 174 of the Courts Act provides a comparable mechanism where a party intends to call a witness who, on the day of trial, will not be in Mauritius or may not be fit to give evidence due to failing health. In such cir- cumstances, the party may apply for a de bene esse hearing before a judge in chambers, following which
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