Friday, 14 January 2022 marked yet another success streak for Etude Guy Rivalland, which won two cases before the Supreme Court of Mauritius, to Viz, District Council of Rivère Du Rempart V Alphamix Ltd 2022 SCJ 19 & Cooppen S. & Anor V. New India Assurance Co. Ltd 2022 SCJ 17
1. District Council of Rivère Du Rempart V Alphamix Ltd 2022 SCJ 19
For Applicant : Mr Jean Jacques, Attorney at Law, instructing Mr P de Spéville, Senior Counsel, together with Mr I Mamoojee, of Counsel, and Miss A Luttoo, of Counsel
Attorney Mr Jean Jacques Robert, appearing for Applicant, moved for an order under article 1027-3 and sequitur of the Code de Procédure Civile declaring null and void a purported award on the hereunder grounds:
(a) The award of the Arbitrator was delivered on 03/01/2019 after the mandate of the Arbitrator had expired and that the purported award, which was an unsigned draft document dated 31/12/2018, is null and void since it fails to comply with the requirement of article 1026-4 of the Code de Procédure Civile.
(b) Pursuant to articles 1026-4 and 1026-5 of the Code de Procédure Civile, it was incumbent on the Arbitrator to sign the said purported award for it to be valid. Since the purported award dated 31/12/2018 does not contain the signature of the Arbitrator, the award must be deemed to be null and void.
A. Law
In essence, articles 1026-4 and 1026-5 of the Code de Procédure Civile read as follows:
“ 1026-4 La sentence arbitrale est signée par tous les arbitres. Toutefois, si une minorité d’entre eux refuse de la signer, les autres en font mention et la sentence a le même effet que si elle avait été signée par tous les arbitres.
1026-5. Les dispositions des articles1026-2 alinéa 2, 1026-3, en ce qui concerne le nom des arbitres et la date de la sentence, et 1026-4 sont prescrites à peine de nullité. »
B. Analysis
Given that the mandate of the Arbitrator came to an end on 31/12/2018 and the parties never agreed to extend the said mandate, the Arbitrator failed to deliver the Signed Award within his mandate on 31/12/ 2018 and consequently the latter thus failed "de se conformer à la mission qui lui avait été conférée"
The Court was comforted in the aforesaid decision by the following extract in Jurisclasseur, Fasc 1046: Arbitrage -La décision arbitrale -voie et recours note 69-Mise à jour du 01/07/2016, in which the following can be read :
"Une sentence rendue après l'expiration du délai conventionnel encourt l’annulation pour non-respect de sa mission par l’arbitre, sans qu'il y ait à justifier de grief (CA Paris, pôle 1, ch.1, 18juin 2013,n° 12/00480)."
C. Decision
The Court declared the award made by the Arbitrator null and void under article 1026-5 of the Code de Procédure Civile.
2. Cooppen S. & Anor V. New India Assurance Co. Ltd 2022 SCJ 17
For Respondent: Mr. Z. Hatteea, Attorney at Law instructing Mr. I. Mamoojee, together with Ms A. Luttoo, both of Counsel
The Appellants are Mauritian Citizens settled in the United Kingdom. On 18/08/2009, during a visit to Mauritius, they were involved in car accident wherein the Appellant No.1 sustained a severe head injury.
The Respondent, represented by Attorney Mr Z Hatteea (Both Trial & Appeal cases), admitted liability and the trial court, in determining the quantum of damages (material, moral and loss of earnings) relied on “principe de réparation intégrale du préjudice sans perte ni profit” to adjudicate that the Appellants (then Plaintiffs) should not be compensated for expenses incurred in respect of “extravagant choices due solely to their personal will”.
After examining each head of damages, the trial Judge awarded material damages to the appellant No. 1 only in the agreed amount of Rs 12,500 and moral damages in an amount of Rs 1,000,000. The trial Judge further awarded an amount of Rs 250,000 moral damages to the appellant No. 2. She accordingly made an award of Rs 1,012,500 as damages to the appellant No. 1 and Rs 250,000 to the appellant No. 2. No no no
The Appellants felt aggrieved by the decision of the trial court and appealed on various grounds, all which culminate to the fact that the trial judge:
failed to compensate the appellants in accordance with their lifestyle;
was wrong to conclude that the appellants’ claim for first class air tickets and accommodation at Shandrani Hotel, was extravagant;
had failed to take into account that the appellants have settled in the UK and have a high standard of living; that the appellants have, during their previous visits to Mauritius, usually stayed in a five-star hotel; that “it was untenable to stay at J. N. Hospital at Rose Belle” (sic); that the appellant No. 1 had to be attended to and cared for constantly by two professional nurses throughout his convalescence; that the appellants could not stay in Mauritius indefinitely; and their departure date from Mauritius after the appellant No. 1’s convalescence.
A. The Law
Heavy reliance was placed on the case of S. D. Patel & Ors v A. Beenessreesingh and SICOM Ltd [2012] UKPC 18, wherein the Judicial Committee of the Privy Council set out the different heads under which damages may be awarded for personal injury.
The relevant paragraph is reproduced below:
“Damages for personal injury are likely to fall under one or more of four main heads, each of which will need, in the generality of cases to be separately considered and quantified. They are (i) material (i.e. pecuniary) damage in respect of (a) expenditure occasioned by the injury up to the date of judgment, (b) future costs of care and treatment and (c) loss of earnings both before and after judgment; (ii) moral damages, representing physical and mental suffering, loss of amenity, and, more generally, what the Court de Cassation has recently called "loss of quality of life and of its normal pleasures.”
B. Analysis & Decision
It was analyzed that it remained incumbent upon the Appellants to justify their claim and to adduce evidence to substantiate each and every item of their claim and further to establish a causal link between the accident and the damage sustained.
The Court of Civil Appeal held that, after perusing through the findings of the trial judge, it found no reason to interfere with her findings and that the trial Judge was perfectly entitled to disallow such items which she considered to be no more than an “extravagant choice” made by the appellants and did not constitute a loss which arose from the accident.
Both Judgments can be accessed here: