MAURITIUS Trends and Developments Contributed by: Ali Adamjee and Raza Currimjee, Chambers of Sir Hamid Moollan KC
Hobler v Harker: Presence of Assets in the Jurisdiction Not a Pre-Requisite for Exequatur The recent decision of the Supreme Court in Hobler v Harker [2024] SCJ 159 is a welcome addition to the pro-enforcement line of cases. The Supreme Court recognised a judgment delivered by the High Court of Hong Kong and rejected an argument to the effect that recognition should be refused on the grounds that the judgment debtor is no longer domiciled in Mauritius and does not have assets in Mauritius. The court relied on a decision of the French Cour de cassation dated 26 June 2019 and observed that the exequatur of a foreign judgment does not depend on the presence of assets within the jurisdiction, notwithstanding that the judgment debtor was a foreign national and a non- resident. In the instant case, the Court was also per - suaded to recognise the judgment of the Hong Kong High Court because the judgment creditor satisfied the court that it had reason to believe that the judg - ment debtor would return to Mauritius. The recognition of the foreign judgment integrates it into the Mauritian legal order which then paves the way for enforcement measures which may include attachments, garnishee orders or winding-up pro - ceedings. Equitable Remedies to Protect the Efficacy of a Judgment Owing to the English colonial heritage of Mauritius, the Supreme Court of Mauritius is vested with full equi - table jurisdiction to grant equitable remedies, and its judges sit and conduct business in the same manner as judges in the High Court of Justice in England (see Sections 16 and 17 of the Courts Act 1945). These are potent provisions that vest the Supreme Court with plenary powers to grant equitable relief includ - ing freezing injunctions (also known as Mareva injunc - tions), asset disclosure orders, and search orders ( Anton Piller orders). This was recently confirmed by the Judicial Committee of the Privy Council in Stanford Asset Holdings v AfrAsia Bank [2023] UKPC 35 at [31]- [32]. This decision also confirmed that the Supreme Court of Mauritius possesses equitable jurisdiction to grant Norwich Pharmacal Orders (ie, disclosure orders made against parties mixed up in facilitating a wrong - doing), whether as a free-standing relief or ancillary to a freezing order.
One important (and indeed necessary) feature of a modern commercial jurisdiction is the power of its courts to make orders that protect the efficacy of an eventual judgment or indeed a judgment or award that has already been granted. This is achieved through the equitable remedies of freezing injunctions and asset disclosure orders. In Barclays Bank Mauritius v Karamuth [2017] SCJ 313, the Supreme Court has confirmed that it has the power to grant freezing injunctions including any ancillary orders (eg, asset disclosure orders) to assist the efficacy of the injunc - tion. In Appavoo v Buttie [2016] SCJ 118, the court ordered a party to disclose a list of all assets it owned whether in Mauritius or abroad coupled with a freezing injunction. This is an important power that ensures that judg - ment debtors seeking to avoid or defeat a judgment debt cannot dissipate assets out of Mauritius. Equally, the availability of asset disclosure orders and search orders ensures that judgment debtors cannot park assets in Mauritius with a view to escaping their liabili - ties under a foreign judgment or arbitral award. The decision of the Judicial Committee of the Privy Council in Broad Idea International v Convoy Collateral [2021] UKPC 24 at [102] (on appeal from the BVI) now confirms that a court with equitable jurisdiction may grant a freezing injunction: • in relation to a foreign judgment or award that is capable of enforcement in the same way as a judgment of the domestic court using the court’s enforcement powers; and • even where proceedings in which judgment is sought have not yet been commenced or where a right to bring such proceedings has not yet arisen – it is enough that the court can be satisfied with a sufficient degree of certainty that a right to bring proceedings will arise and the proceedings will be brought (whether in the domestic court or before another court or tribunal). This is a welcome decision which, in the words of Lord Nicholls in his dissenting speech in Mercedes v Lei- duck [1996] AC 284 at 306, ensures that a party can - not defeat the purpose of the judgment (including a foreign judgment) by thwarting in advance the efficacy
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