Piganiol v Smegh (Île Maurice) Ltée

An affidavit supporting a motion under rule 2(2) of the Supreme Court Rules 2000 need not be made by the mover or the mover’s proxy. The essential requirement is that it sets out the factual basis of the motion. Rule 22(c), read with Part II and rules 3(1) and 13(1), supplies the relevant content. A mandatory procedural requirement should not be implied merely because a particular practice is usual. A witness’s possible bias concerns the truth and weight of the evidence, not the formal sufficiency of the motion. Where the opposing party has not put the factual account in issue, that possibility does not invalidate the motion.

Mr Piganiol brought contractual proceedings against Smegh (Île Maurice) Ltée. The company obtained an order for a new trial after alleging that it had not been served with the proceedings. Mr Piganiol then sought rescission of that order, relying on an affidavit from Mr Venkatachellum, the person who had allegedly received and passed on the proceedings.

The Supreme Court rescinded the order. On appeal, the Court of Civil Appeal held that the motion was invalid because its supporting affidavit had not been made by Mr Piganiol or his proxy, and quashed the rescission order. The central issue before the Privy Council was whether rule 2(2) imposed that authorship requirement.

The Board allowed the appeal.

1. Construction of rule 2(2). The requirement for an affidavit supporting a motion must be understood by reference to the text and purpose of the Supreme Court Rules 2000. The fact that motions are usually supported by an affidavit from the mover or the mover’s proxy does not establish that this is invariably required. Rule 2(2) contains no express requirement that the affidavit be made by either of them, and the Board found no basis for implying one.
2. Factual basis of motion proceedings. Rule 22(c) provides that the rules apply to motion proceedings as if the exchanged affidavits constituted pleadings. Part II, rules 3(1) and 13(1) therefore indicate that the supporting affidavit must identify the parties, state the substance of the cause of action or ground of the motion, and set out all facts necessary to sustain it. It need not be sworn by the mover if it adequately performs that function.
3. Application. Mr Venkatachellum’s affidavit identified the parties, described the alleged service, and set out the factual basis for seeking rescission. Nothing material could have been added by Mr Piganiol or his proxy. Requiring a further affidavit would have served no procedural purpose.
4. Credibility and disposition. The possibility that Mr Venkatachellum had a grievance against the company was relevant to the truth and weight of his account, not to the validity of the motion. The company had not specifically disputed his evidence about service. The Board therefore set aside the Court of Civil Appeal’s order, dismissed the company’s appeal against the order of 13 October 2009, and awarded costs to Mr Piganiol.

1. Privy Council: In [2014] UKPC 1, the Board allowed Mr Piganiol’s appeal, set aside the Court of Civil Appeal’s order of 23 June 2011, dismissed the company’s appeal against the order of 13 October 2009, and made costs orders in Mr Piganiol’s favour.
2. Court of Civil Appeal: On 23 June 2011, the court allowed the company’s appeal against the order of 13 October 2009, quashed the rescission order, and directed that Mr Piganiol’s action proceed to trial.
3. Supreme Court of Mauritius: On 13 October 2009, Mrs Justice Balgobin refused to quash the rescission order and set aside the company’s motion. The rescission order had been made by Chief Justice Yeung Sik Yuen on 8 October 2007. The company’s earlier application for a new trial had been granted by Chief Justice Pillay on 8 November 2006.