A.Parsoramen & Co. Ltd & Sun Insurance Co Ltd v La Prudence Mauricienne Assurance Ltd (Main Case-CN: 1235/10) and
La Prudence Mauricienne Assurance Ltee (substituted to read ‘The Mauritius Union Assurance Co Ltd’) v CIM Finance Ltd & Phoolchand Ujoodha (Third Party Case-CN: 514/11)
FACTS:
The present claim for damages arise following a road accident involving five vehicles (‘carambolage’), the Plaintiff’s and Defendant’s vehicles in the main case (CN: 1235/10) were second and third vehicle of the pile up whereas the Third Party in the Third Party case (CN: 514/11) was the last vehicle.
No plea was filed on behalf of the Defendant in the main case (CN: 1235/10) even after the third party case (CN: 514/11) was lodged. Only at the stage of writing judgment did the Learned Magistrate take cognizance that in fact no plea had been filed, although same had been communicated to the attorney of the Plaintiff.
ISSUE:
Can Defendant now file its plea at this stage, where judgment is about to be given and all parties have closed their case?
HELD:
In the light of requirements set out under rule 38 of the Supreme Court Rules (which provide guidance on the third party procedure) and after having taken into consideration the ‘ratio decidendi’ of several cases, the learned Magistrate has carried out a balancing exercise as to whether it is in the interests of justice to allow the Defendant in the main case (CN: 1235/10) to re-open the case and file the plea.
The learned Magistrate, using his wide powers and discretion proceeded to decide that ‘the omission in filing the plea in the main case was a genuine and minor error which can be cured by allowing same to be filed at this stage’, after having taken into consideration the following:
(i) Counsel for the Plaintiff and the Third Party admitted having had no difficulty to conduct the defence of their client in all fairness and in the interest of justice inasmuch as they were both in possession of the plea, abided by same and knew very well the case they had to meet;
(ii) It was in the interest of justice to allow the plea to be filed at this stage since the case took so long to be heard and if non-suited, the Plaintiff will not be able to lodge a case on the same facts anew due to time bar; and
(iii) At no point in time did Counsel for the third party indicate to the Court, although he had ample opportunity to do so, that he was impeded in the conduct of his case due to this error and could not do justice to his client. Court records and proceedings instead point out that he had all latitude to conduct his case. No prejudice had been caused to Counsel or his client in the conduct of the defence.
Etude Guy Rivalland defended the interests of the Defendant in the main case (CN: 1235/10).
