MAURITIUS Law and Practice Contributed by: André Robert and Ammar Oozeer, BLC Robert & Associates
judicial process whereby the legal notice is signed by an attorney-at-law and served by a registered usher. In the context of a contractual dispute, the plaintiff must serve a legal notice on the defaulting party, prior to initiating the claim. The legal notice serves to notify the defaulting party of the breach and to request that they remedy the breach or pay an amount within a time specified in the legal notice, failing which, the plaintiff will be entitled to claim for damages together with interests, as from the date of service of the legal notice. Another important pre-action requirement is when a person intends to sue the State of Mauritius. The limi- tation period to sue the State of Mauritius is two years as from the date the cause of action has arisen. Prior to lodging a claim against the State of Mauritius, the plaintiff must give one month’s prior written notice of the intended action, suit, or proceedings and of the subject matter of the complaint to the State of Mau- ritius. Failure to comply with these statutory require- ments is fatal to the action. For certain applications such as judicial review, actions are not possible unless all other remedies have been exhausted (eg, appeals before an executive body or tribunal). Before certain cases are entered against a foreign defendant, leave of the judge in chambers to enter the action and serve it on that party must be obtained. 3.2 Statutes of Limitations 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 short- er 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 omis- sion against public officers or persons engaged in the performance of any public duty or persons assisting such persons must, under pain of nullity, be instituted within two years from the date of the fact, act or omis-
sion which has given rise to the action, suit or other proceeding. Applications for judicial review of an executive deci- sion 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 applica- tion may be set aside even if made within the three- month limit. 3.3 Jurisdictional Requirements for a Defendant Any defendant of Mauritian nationality is subject to the jurisdiction of the Mauritian courts, even in respect of obligations contracted outside Mauritius. In respect of a foreign defendant, the Supreme Court will allow initiation and service of proceedings against the defendant if one of the conditions in the Courts (Civil Procedure) Act is met, namely: • the whole subject matter of the action is immov- able property situated within Mauritius; • an act, deed, will, contract, obligation or liability affecting immovable property situated within Mau- ritius 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 Mauri- tius; • 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 dam- ages are or are not sought; • any person outside 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 or 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 jurisdic- tion clause in favour of another jurisdiction, the Mau-
687 CHAMBERS.COM
Powered by FlippingBook