Saverettiar v Saverettiar

Under rule 45 of the Rules of the Supreme Court 2000, an applicant for a new trial must establish that an error occurred and that it deprived him of the opportunity to present a defence. A convincing good defence may make a retrial necessary in the interests of justice, even though the rule does not expressly identify that ground. The applicant must provide evidence of the proposed defence; bare assertions are insufficient. An acceptable reason for non-attendance does not guarantee relief, and deliberate absence does not automatically bar it. A new ground raised for the first time on appeal may be refused where it has not been investigated, evidenced or put to the opposing party.

The appellant applied for a new trial after judgment was entered in his absence on his sister’s claims concerning rent, occupation and business profits. He alleged that he had attended the wrong court and that he had a good defence. Hamuth J dismissed the application on 28 June 2010. The Court of Appeal of the Supreme Court of Mauritius dismissed his appeal on 26 June 2013. Before the Privy Council, the appellant sought to revive abandoned grounds and raise a new challenge based on allegedly defective service. The central issues were whether the new service point could be entertained, whether an error had prevented the appellant from presenting a defence, and whether the interests of justice required a retrial.

Lord Kerr delivered the judgment of the Board, which dismissed the appeal.

1. New ground on appeal. The proposed challenge to service under rule 4(3) of the Rules of the Supreme Court 2000 could not be entertained. It had not been raised below, its merits had not been investigated, no evidence had been led, and the respondent had not been given an opportunity to answer it.
2. Error and the interests of justice. Before granting a new trial under rule 45, the court must be satisfied that an error occurred and that the error prevented the applicant from presenting a defence. The burden rested on the appellant. His account of attending the wrong court was inherently unlikely, and he had not explained why he made no inquiry when his case was not called or when his sister was absent. The Board therefore accepted that he had not established the alleged error.
3. Good defence. Although rule 45 does not expressly mention a good defence, a convincing defence will ordinarily make it contrary to the interests of justice to deny a retrial. The court must consider the strength of the proposed defence alongside the reason for non-attendance. Error alone does not guarantee relief, and deliberate absence does not automatically preclude it. A party may, however, face costs consequences for failing to advance the defence promptly.
4. The appellant’s assertions that there was no profit-sharing agreement, that rent had been paid, and that a company occupied the premises were unsupported by documentary or other evidence. They therefore provided no viable basis for a new trial.
5. The assessment of the respondent’s claim was rough because the hearing was undefended, but the trial judge had excluded the statute-barred part, questioned the claimed profit rate and made the best assessment reasonably available on the evidence. His approach was not shown to be erroneous.

The appeal was dismissed. The appellant was allowed 28 days to make submissions on why the appeal costs should not be awarded against him, with 14 days for the respondent to reply.

1. Privy Council: Appeal dismissed on 8 June 2015.
2. Court of Appeal of the Supreme Court of Mauritius: Appeal dismissed on 26 June 2013.
3. Supreme Court of Mauritius, Hamuth J: Application for a new trial dismissed on 28 June 2010.