MAURITIUS Law and Practice Contributed by: André Robert and Mushtaq Namdarkhan, BLC Robert & Associates
3.4 Initial Complaint Before the Supreme Court, the originating doc- ument is a plaint with summons. In the lower courts, the originating document is called a “praecipe” (which serves the same purpose as a plaint with summons). Before a judge in chambers, the originating doc- ument is also called a praecipe, but it is a simpler document setting out the request, relief or dam- ages sought by the applicant. The praecipe must be supported by affidavit evidence. Certain procedures which require urgency (eg, a judicial review) or which are made under spe- cific enactments (eg, the Companies Act or the Insolvency Act) are initiated by way of motion paper supported by affidavit evidence. In judicial review applications, the application must also be accompanied by a statement setting out the grounds of review. The general rule is that originating documents and other pleadings can be amended before the hearing if the amendment does not cause prejudice to other parties and the latter have an opportunity to respond to the amendments. This follows the principle that the purpose of plead- ings is to identify the real issues in controversy which the trial court must determine. A judge is unlikely to exercise discretion to allow amendments made after witnesses have started to depone, or those made to circumvent a valid objection in law raised by another party. 3.5 Rules of Service When service is effected in Mauritius, it has to be effected by a private usher retained by the plaintiff or by a court usher. The usher’s return is conclusive evidence that service has been effected (if successful). If service is unsuc-
cessful, the court will order that fresh service be attempted and if there are still unsuccessful attempts, the court may order that the defendant be informed of the case by way of substituted service in several forms which may include pub- lication in newspapers. Service on a company is effected by leaving the documents at its reg- istered office, by delivering them to one of its directors, by delivering them to an employee at the head office or principal place of business, or in accordance with a prior agreement with the company. When ordering that service be effected on a for- eign party in accordance with the provisions of the Courts (Civil Procedure) Act, the Supreme Court will order that such service be effected in accordance with the laws of the country where service is being effected. It is the plaintiff who bears the responsibility of arranging service on a foreign party, including arranging for the evi- dence of service to be properly legalised before it can be relied upon before a Mauritian court. 3.6 Failure to Respond If a defendant does not respond to a lawsuit, the court will order the case to be heard in the absence of the defendant but will also order that, before the hearing, the defendant is served with a “notice of trial”. At the hearing, the continued absence of the defendant does not mean that judgment is automatically given in favour of the plaintiff. It is still incumbent on the plaintiff to prove its case on the balance of probabilities and call one or more witnesses to give evidence and produce documents in support of its case. A default judg- ment will only be delivered if the court is satisfied that the plaintiff has indeed established its case according to the required standard of proof.
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