Supreme Court of Mauritius, 23 janvier 2020, 2020 PL1 2 – Swan General Ltd & Anor v. Madhub Jayraj & Anor

Swan General Ltd & Anor v. Madhub Jayraj & Anor

2020 PL1 2

IN THE DISTRICT COURT OF PORT LOUIS (Div I) Cause Number: – 701/17 In the matter of: – 1. Swan General Limited 2. Poulet Arc en Ciel Ltee Plaintiffs v. 1. Madhub Jayraj Balkrishna Canthiram Defendants RULING This is an action for damages sustained following a road traffic accident which occurred on or about the 14 th May 2011. The plaintiffs and the defendant no 2 were represented by counsel. Defendant no 1 has never attended court and the case has been fixed for make out against him.

Before the start of the trial, learned counsel for the plaintiffs moved to amend the plaint at paragraph 7 of the plaint by adding a sub paragraph as follows “(g) driving under the influence of alcohol”. She further moved to amend paragraph 5 by substituting “defendant no 1” in lieu and in stead of “defendant no 2”.

Learned counsel for the defendant no 2 has objected to the proposed amendments on the following grounds: –

(1) The amendments are being brought at a very late stage when the plea of the defendants has already been filed; (2) The particulars of the “faute” had already been sufficiently particularized under paragraphs 4 and 7 of the praecipe dated 11 th October 2017; (3) The answer to particulars dated 22 nd January 2018 shows that the plaintiffs were already aware under question 3 that the matter had been reported to the police and under question 4 that the defendant no 2 had been prosecuted before the District Court of Upper Plaines Wilhems, so that the plaintiffs were aware of the proposed facts leading to the present amendments and this late amendment can only cause prejudice to the defendant no 2.

In a gist, the defendant no 2 objects to the proposed amendment because same will cause prejudice to the defendant no 2 as he will not be provided with a defence in law.

Learned counsel for the plaintiffs submitted that the court has a wide discretion of grant an amendment at any stage of the proceedings. Whilst conceding that the present amendment is being brought at a late stage, it is nonetheless the contention of the plaintiffs that the trial has not yet started and evidence not yet adduced so that the defendant no 2 will not be prejudiced at this stage. She further submitted that the amendment sought will in fact allow the court to hear evidence and decide on the issues between the parties and relied on the authority of Aldrex Suppliers Ltd v. Marie Rebecca Brigitte Madhoo & Anor 2013 SCJ 481. Finally, it was submitted by learned counsel for the plaintiffs that the defendant no 2 has failed to adduce any evidence of prejudice.

Rule 48 of the District, Industrial and Intermediate Courts Rules 1992, provides that, “The District Magistrate may at all times amend all defects and error both of substance and of from in any proceedings in civil matters whether there is anything in writing to amend by or not and whether the defect or error be that of the party applying to amend or not. All such amendments may be made with or without costs as to the Magistrate may seem fit and also such amendments as may be necessary for the purpose of determining in the existing suit, the real question in controversy between the parties”.

I read from Best Luck (Mauritius) Ltd v. Murdhen N & Anor 2013 SCJ 335, “However the Court will exercise such discretion judiciously taking into account inter alia, the nature of the proposed amendment, the stage of the proceedings at which, and the purpose for which it is made, whether there is bad faith or the intention to overreach on the part of the party making it, whether any prejudice is likely to be caused to the other party or parties which may not be compensated by an order for costs…. It is clear from the above authorities that since some decades the modern trend has been without doubt, to grant leave to amend even in a case where the motion is made at a late hour. However, the Court would be more strict in granting applications for amendment at the trial than before the trial in the absence of any explanation as to why it could not have been moved for earlier and will generally not grant an amendment which will prejudice the right of the opposite party as existing at the time of the amendment (Joomun v. Kissoondharry [1977 MR 256] and B Harel & Anor v. Société Harel & Cie and Ors [1993 MR 251]. The Court will also not allow an amendment which is substantial and raises new issues which are inconsistent with those found in the statement of claim (Tive Hive and Ors v Kam Tim [1953 MR 80]”

I have considered the submissions of learned counsel for the plaintiffs and the defendant no 2 as well as the nature of the proposed amendment and I am satisfied that no prejudice will be caused to the defendant no 2 inasmuch as the amendments are being sought before the start of the trial and merely seek to add to the particulars of faute without changing the cause of action of the plaintiffs.

For the above reasons, the amendments are allowed.

S Chui [Ruling delivered by S Chui (Mrs) Senior District Magistrate] [Ruling delivered on 23 rd January 2020]