Hurnam v The Attorney General and others

Where the procedural rules of a superior court require a claimant or applicant to institute proceedings through an attorney, a document signed personally is ordinarily invalid unless the court exercises a residual discretion in exceptional circumstances. That requirement may apply to proceedings commenced by motion as well as by plaint where the rules make their provisions applicable to motions. A later attorney’s involvement does not validate the document merely by certifying copies; the attorney must associate himself or herself with the proceeding in the manner required by the rules. A party relying on exceptional circumstances must provide evidence. The requirement for legal representation at the institution stage is not, in itself, inconsistent with the right to a fair hearing.

The appellant sought to reopen disciplinary proceedings that had resulted in his being struck off the Roll of Law Practitioners. He filed a motion in the Supreme Court of Mauritius as a litigant in person, without an attorney’s endorsement. After an earlier Supreme Court decision, Hurnam v The Director of Public Prosecutions and others [2011] SCJ 219, an attorney filed a notice stating that he had been instructed and had certified copies of documents, but he did not endorse or otherwise associate himself with the motion as required by the rules.

The Supreme Court set aside the motion on 24 February 2014. The appellant appealed, arguing that the rules did not require an attorney’s endorsement, that the requirement did not apply to proceedings instituted before the earlier decision, that the attorney’s notice validated the motion, that exceptional circumstances existed, and that the requirement infringed his constitutional right to a fair hearing.

1. Appeal dismissed. The Supreme Court was right to set aside the motion and correctly declined to consider its merits, including whether it constituted an abuse of process under Rule 15(3)(b) of the Supreme Court Rules 2000.
2. The Board approved the construction adopted in Hurnam v The Director of Public Prosecutions and others [2011] SCJ 219. Rule 3(3), requiring a plaint with summons to bear the attorney’s full name, office address and stamp, read with the omission of the former Rule 60, established a general requirement that proceedings be instituted through an attorney. The court retained a residual discretion to permit institution in person in exceptional circumstances. The reasoning in Quesnel v Dorelle (1867) MR 61 supported that conclusion.
3. The requirement applied to motions. Rule 5(2) required any process to be drawn up and signed by the party’s attorney, while Rule 22 made the rules applicable to proceedings initiated by motion. The Board’s approach was consistent with Piganiol v Smegh (Île Maurice) Ltee [2014] UKPC 1.
4. The earlier court’s use of language indicating that the regime should thereafter be applied rigorously did not postpone the operation of the interpreted rule for proceedings instituted before that decision. An interpretation of long-existing law was to be applied generally from the date of the decision onwards.
5. The attorney’s later notice did not cure the defect. It certified copies of documents but did not contain anything equivalent to the endorsement required by Rule 3(3). The Board left open whether a properly associated attorney could cure an original defect and whether replacement was required after that attorney’s death.
6. The appellant had filed no evidence of exceptional circumstances despite having reasonable opportunities to do so. The constitutional argument also failed. The Board observed that a requirement for institution through an attorney, softened by exceptional discretion, was not itself incompatible with a fair hearing under section 10(8) of the Constitution. The decision of the European Court of Human Rights in GL and SL v France Reports of Judgments and Decisions 2003-III, p 325 supported that conclusion.

• Privy Council: In [2017] UKPC 33, the Board dismissed the appeal.
• Supreme Court of Mauritius: On 24 February 2014, Domah and Teelock JJ set aside the motion because it had been signed by the appellant personally and had not been endorsed by an attorney.