Attorneys for Defendant
Jean Jacques Robert and Josephine Robert
Summary of facts
The Plaintiff in his capacity as special administrator of BAI Co. (Mtius) Ltd and its related companies including Bramer Banking Corporation Ltd (in receivership) (“BBCL”) entered a Plaint With Summons on 30 December 2015 whereby the Plaintiff claimed MUR 200 million to the Defendant under an insurance policy issued by the Defendant for the benefit of the directors and officers of BBCL.
The said insurance policy engages the Defendant to pay out claims for wrongful acts and doings of the directors and officers of the said companies so long that a faute can be established against those persons in the performance of their duties.
On 21 October 2019, Co-Defendant No.2 moved for the application of ‘péremption d’instance’ under articles 397 to 401 of the Code de Procédure Civile (“CPC”), which motion was adopted by the Defendant as well as all Co-Defendants in the case. The matter was fixed for arguments on that basis and a letter was issued by the learned Judge at the Commercial Division of the Supreme Court on 08 October 2019 in querying about the ‘idleness’ of this case. Article 397 CPC states that: “toute instance, encore qu’il n’y ait pas eu constitution d’avoué, sera éteinte par discontinuation de poursuite pendant trois ans. Ce délai sera augmenté de six mois, dans tous les cas où il y aura lieu à demande de reprise d’instance, ou constitution de nouvel avoué. »
According to the Defendant, the Plaintiff (i) had not done anything since 15 September 2016 when he filed the amended Plaint and (ii) did not reply to th
e Demand of Particulars filed by the Defendant be it in March 2016 or in September 2016. Consequently, this is a fit case for ‘péremption d’instance’ to apply.
On the other hand, counsel for Plaintiff submitted that the motion of ‘péremption d’instance’ was flawed as it was not made to the Plaintiff’s attorney.
(i) Whether the fact that Third Party No. 2 filed a Demand of Particulars on 10 March 2017; and
(ii) Whether the fact that the statement made by the attorney for Plaintiff when he was seeking a postponement to report progress on the pooling of BAI Co. (Mtius) Ltd on 21 October 2019
would interrupt the required 3 year period for the ‘péremption d’instance’.
The judge is satisfied that article 397 CPC finds its application in the present case and upheld the plea in limine litis raised by the Defendant and the Co-Defendants and non-suited the plaint with costs on the following grounds:
(i) The request for ‘péremption d’instance’ not only benefits the party who has sought the same but all those whom the Plaintiff had put into cause i.e. the Co-Defendants and the third parties (principe de l’indivisibilité de la péremption d’instance);
(ii) The required 3 year-period for ‘péremption d’instance’ would only be interrupted by an ‘acte de procédure’ or an ‘acte valable’. In this case, the fact that Third Party No.2 filed a Demand of Particulars does not constitute an ‘acte valable’ on the part of the Plaintiff nor does the statement made by the Plaintiff’s attorney during the sitting dated 21 October 2019 be construed as an ‘acte de procédure’ as it was a mere statement that some amendments needed to be made to the Plaint With Summons;
(iii) Since the prayer and remedy sought from the Court is only for damages against Defendant and that the ‘litige est indivisible’, article 397 CPC finds its application. “L’instance étant éteinte” against the Defendant, it also inevitably leads toit being ‘éteinte’ vis-à-vis Co-Defendants and Third Parties.