AIMÉE L.H.

v RADIO PLUS LTD

2020 SCJ 16

Record No. 107584

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Louis Hervé Aimée

Plaintiff

Radio Plus Ltd

Defendant

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INTERLOCUTORY JUDGMENT

In a plaint dated 7 January 2013, the plaintiff who was then Minister of Local
Government and Outer Islands claimed from the defendant damages in the sum of
Rs 10,000,000 on account of a “faute” allegedly committed by the defendant in
broadcasting news on 1 December 2012 which contained “malicious allegations
grossly defamatory of him”.

After seeking particulars, and further and better particulars, of the plaint, the
defendant filed its plea on 27 November 2014, after which the case was made to
await its turn on the cause list. It was next mentioned on 7 August 2018 when the
attorney appearing for the defendant stated that Mr R. Chetty SC would appear in
lieu and stead of Mr Ruchpaul as Counsel for the defendant. The case was then fixed
for merits on 7 May 2019.

On 2 May 2019 the defendant’s attorney wrote to the Chief Justice to state
that he appears instructing Mr Chetty SC and Mr Reesaul for the defendant and that
the defendant would on 7 May 2019 move to amend its plea as per an enclosed
proposed amended plea. The plaintiff’s attorney replied, by letter dated 6 May 2019,
that the proposed amendments would be objected to on the following grounds –
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(a) they are coming at too late a stage;

(b) prejudice is likely to be caused if they are allowed;
(c) the defendant is debarred from retracting the “aveu” in its plea at the
eleventh hour.

On 7 May 2019, learned Counsel for the defendant moved to amend the plea
as per a second proposed amended plea. The plaintiff objected to the said motion
and arguments were offered on the motion by learned Counsel.

Learned Counsel for the plaintiff placed heavy emphasis on the late stage at
which it was proposed to amend the plea. He referred to Rule 17 of the Supreme
Court Rules 2000 and the judgments of Soobhany & Ors v Soobhany & Ors [1989
MR 191], Bhadain v ICAC [2004 MR 11] and Best Luck (Mauritius) Ltd v Murdhen
& Anor [2013 SCJ 335], and submitted that new issues were being raised in the
proposed amended plea six years after the plaint was lodged and five years after the
plea was filed and the case was in shape. He also highlighted that no motion to
amend the plea had been made in 2018. He was of the view that the motion for
amendment had not been made diligently and the amendment would therefore be
prejudicial to the administration of justice.

He further stressed that the defence of good faith was being raised for the
first time in the proposed amended plea, that the present plea contains a general
denial of the averments in the plaint, which, on the authority of Punjabi & Co Ltd v
Société M. Rajwani & Co [2009 SCJ 76], amounts to an admission and that the
raising of new defences in the proposed amended plea amounts to a revocation of an
“aveu judiciaire”. He submitted that the proposed amendments should therefore not
be allowed and that prejudice to the plaintiff would result from the delay, the more so
as the plaintiff would probably also have to apply for particulars of the plea if same is
amended.

Mr Reesaul stated in reply that Mr Chetty’s services as Counsel had been

retained since 2018, but his own services were retained later and he received the file
one month only before the date of trial. He stressed that the motion for amendment
was being made before the start of the trial and the case was on all fours with that of
Hems Apparels v State Bank of Mauritius Ltd & Ors [2009 SCJ 419] in which the
amendment was allowed. He also submitted that the new defences that were sought
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to be raised in the proposed plea were defences in law and there was no purported
revocation of an “aveu judiciaire”. Finally, he submitted that the plaintiff would suffer
no prejudice if the amendment were to be granted, and he referred to ABC Motors
Co Ltd & Ors v Ngan Hoy Khen Ngan Chee Wang & Ors [2008 SCJ 25a] in that
regard.

I have duly considered the submissions of learned Counsel and the

authorities cited by them.

The relevant provisions of Rule 17 of the Supreme Court Rules 2000 read
as follows –

“Amendments of pleadings

(1) The Master may grant the amendment of any pleading

and the Court may at the hearing of a case grant an
amendment of any pleading, in such manner and on such
terms as may be just and reasonable, for the purpose of
determining the real question in controversy between the
parties.

(2) An application for an amendment under paragraph (1)

shall be made by way of motion.

(3) Where a pleading is amended by order of the Master or

the Court, the pleading shall be redrawn in its amended form.

(4) The Master or the Court shall deal with the issue of
costs as he or it thinks fit.

(…)”

Based on the provisions of Rule 17(1) (and, before it, Rule 35 of the Rules
of the Supreme Court 1903), the test applied by the Supreme Court has
consistently been whether the amendment is required for the purpose of determining
the real question in controversy between the parties and whether it is likely to result
in any prejudice or injustice which cannot be compensated by an order for costs (see
Mrs L. Tive Hive & Ors v Kam Tim [1953 MR 80], Soobhany & Ors v Soobhany &
Ors (supra), Hems Apparels v State Bank of Mauritius Ltd & Ors (supra), Best
Luck (Mauritius) Ltd v Murdhen & Anor (supra) and Bamford Excavators v
Khadun Construction Ltd [2019 SCJ 138]), the rationale being that the Court exists
to decide the rights of parties and not for the sake of discipline (see Marday C. & Ors
v Marday B. [2008 SCJ 30]).
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It is worth noting that, in the UK, following the implementation of the Jackson
Reforms to the Civil Procedure Rules, a distinction is now drawn between “late” and
“very late” applications to amend (see e.g. Swain-Mason v Mills & Reeve [2011] 1
WLR 2735 and Quah v Goldman Sachs International [2015] EWHC 759),
depending on whether the case has already been fixed for trial, and a heavy burden
to show the strength of the new case is imposed on a party making a “very late”
application to amend. Further, payment of costs is no longer considered to be
adequate compensation. However, in view of the wording of rule 17 of our Supreme
Court Rules, it is appropriate for this Court to continue to refer to older UK authorities
based on the former Order 28 r. 1 of the UK Rules of the Supreme Court, such as
the oft-quoted judgment of Kettleman v Hansel Properties Ltd (1987) A.C. 189.

Indeed, in Unmar v Lagesse [1994 MR 183], the learned Judge summarised

the principles governing amendment of pleadings in the following terms –

“The general principles relating to amendment of pleadings have been

fully considered in a number of cases. The dominant principle appears
to me to be that the Court has a discretion to grant or to refuse an
amendment, and that this discretion should be exercised upon an
assessment of where justice lies: See the dicta of Lord Griffiths in
Kettleman v Hansel Properties Ltd. (1987) A.C. 189 at page 220,
quoted in Soobhany v Soobhany [1989 MR 191]. Many and diverse
factors will bear upon the exercise of this discretion. The Court will
bear in mind, in particular that the interests of justice normally require
that the real controversy which finally exists between the parties
should be resolved. This consideration will weigh very heavily in the
balance but on the other hand the Court may take into account a
number of other factors which it is impossible to enumerate, but which
certainly includes the nature of the amendment and the behaviour of
the party seeking the amendment. In the Kettleman case (supra)
Lord Griffiths said (at p. 220) that "to allow an amendment before a
trial begins is quite different from allowing it at the end of the trial to
give an apparently unsuccessful defendant an opportunity to renew
the fight on an entirely different defence". And in the same case, Lord
Brandon of Oakbrook, summarising the principles regarding
amendment of pleadings, said, at p. 212, that "however blameworthy
(short of bad faith) may have been a party's failure to plead the
subject matter of a proposed amendment earlier, and however late
the application for leave to make the amendment may have been", the
application should, in general, be allowed provided that there is no
injustice to the other party, there being no such injustice when he can
be compensated by appropriate orders as to costs. It is noteworthy
that in Jagatsingh v Boodhoo and Walter v Boodhoo [1981 MR
357] where Counsel for the defence had adopted unjustifiable tactics
involving concealment of certain facts until as late as possible, the
Appellate Court, after reviewing the law relating to pleadings, still
found that, despite the reprehensible attitude of the respondent, it
would have been "wrong to shut the door of Justice to him" by
refusing the amendment.”
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Now, in the present case, the plaintiff is suing the defendant in relation to an
allegedly defamatory broadcast. True it is that the amendments sought to be made to
the plea are coming nearly five years after the plea was filed but it cannot be denied,
without in any way making any pronouncement on the merits of the defence, that the
issues raised in the proposed plea would assist in determining the real question in
controversy. They also purport to refer expressly to defences in law which could have
been raised by learned Counsel for the defendant in submissions and of which
advance notice would now be given to the plaintiff in the plea. I also take note of the
fact that the trial has not yet started, that Mr Reesaul’s services were retained shortly
before the case was coming for trial and that the plaintiff is not contending that there
is bad faith on the part of the defendant. I find that in the circumstances the
amendments would cause no prejudice, nor injustice, to the plaintiff and may be
allowed in the interest of justice, subject to the payment by the defendant of the costs
arising from them.

I further agree with learned Counsel for the defendant that there is no “aveu
judiciaire” in the original plea. The plea consists in fact of a general denial and
contains no admission “in clear and unequivocal terms” (see Boodhoo v Lamco
International Insurance Ltd [2015 SCJ 134]). The proposed amendments, as
highlighted above, purport essentially to raise defences in law which could have been
raised at any time so that the plaintiff cannot be said to be prejudiced by them (see
ABC Motors Co Ltd & Ors v Ngan Hoy Khen Ngan Chee Wang [2003 SCJ 69]
and ABC Motors Co Ltd & Ors v Ngan Hoy Khen Ngan Chee Wang & Ors [2008
SCJ 25a]).

For the reasons given above, I allow the proposed amendments as per the
second proposed amended plea of the defendant. The defendant will bear the costs
of the day.

The case will be mentioned before the Master and Registrar on 23 January
2020 to be put in shape in the light of the above and to be fixed for early trial.

A.D. Narain
Judge

17 January 2020
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For Plaintiff : Mr A.O. Jankee, Attorney-at-Law

Mr J. Beeharry together with
Mr A. Luximon, of Counsel

For Defendant : Mr P. Nathoo, Attorney-at-Law

Mr R. Chetty, SC together with
Mr Y. Reesaul, of Counsel