Case Commentary: Mulliez H.S.B v Telecel Group SA & Anor 2025 SCJ 31

Judicial Activism

The increasing use of similar purpose applications before the Court of Civil Appeal was the subject matter of an in-depth analysis by the Dispute Resolution team at Appleby in an article published on the 06 October 2022, Cutting Through The Law – Section 6 Of The Court Of Civil Appeal Act | Appleby . The article analysed the appeal mechanism available under the Courts Act 1945 (“CA 1945”) and the Court of Civil Appeal Act 1963 (“CCAA 1963”) to a litigant who is aggrieved by the decision of the Judge sitting at Chambers and the absence, under the laws of Mauritius, of an urgent remedy, other than a lengthy appeal process, to such a litigant. The article concluded that in the absence of an urgent remedy, judicial activism would be the likely remedy in the absence of a change in the law.

The equitable jurisdiction of the Supreme Court.

Mulliez H.S.B v Telecel Group SA & Anor 2025 SCJ 31 seems to have shared our analysis and the key parts of the judgment are set out below:

• As it has been seen, the proper procedure for an appeal against a judgment or order of a Judge in Chambers is by way of an ordinary appeal before the Supreme Court. But as was highlighted in Maudarbocus F. B. R. v. Moorghen J. & Anor [2024 SCJ 196]: “… given the procedural steps involved before an appeal can be heard and finally determined, the right to appeal may prove to be unsatisfactory …”
• Thus, in a case where the procedure for the hearing of an ordinary appeal, albeit through the adoption of an accelerated procedure, may take such time as to result in irreparable harm, the aggrieved party, may, subject to all the required conditions being met, seize the equitable jurisdiction of the Supreme Court.
• Such jurisdiction may therefore be invoked where the exercise of the statutory right of appeal to the Supreme Court would not provide the type of immediate remedy to which the appellant may be entitled i.e. where time is of the essence and there is an urgency for an appellant to obtain an immediate remedy following the setting aside or dismissal of his ex parte application before the Judge in Chambers pending the determination of his appeal or main case.

Fresh application

Mention was also made in Mulliez (supra) of making a fresh application before another Judge in chambers after same has been refused in the first application. The Court held:

“where an injunction has been refused by a Judge, it is open to the applicant to make a fresh application to another Judge, subject to the conditions laid down in the Rules of the Supreme Court and in conformity with the following guiding principles:

“… Normally a factor of great, if not determinative, weight would be whether on that second application new evidence or other matters were to be brought to the court’s attention which had not been before the court on the first application and which were substantially material to the exercise of the court’s discretion in favour of the claimant …” [Laemthong International Lines Co Ltd v ARTIS & Ors [2004] EWHC 2226 (Comm)]

“Where, however, a second application introduced nothing that was not before the court on the first application it would normally be the case that the discretion to hear that application would not be exercised in favour of the claimant. He had made the identical application on the same materials. That had been rejected and he had not availed himself of the opportunity to appeal that decision. Any further hearing would therefore simply be in an appeal from the first decision. In as much as it would simply be a re-run of the previous hearing in the hope that another judge would arrive at a different conclusion, it would be using a commercial judge to provide a facility which was properly the function of the Court of Appeal. That, in my view, would be an abuse of process in the sense that it would be an impermissible use of the resources of the court.” (Laemthong)”

Our comments

Whilst the decision of the Court of Civil Appeal is welcomed by many legal practitioners, there are likely to be more challenges to these Section 6 – similar purpose applications in the future. Each case will inevitably be judged on its own merits.

In most of these urgent applications and we are not speaking of the frivolous ones, aggrieved litigants are likely to find good reasons to resort to Section 6 applications in their quest for justice. Legal practitioners will no doubt play a vital role in advising their clients about whether such applications have chances of success or are bound to be set aside.

At least we are now comforted that there is an urgent remedy to a deserving litigant when his initial application before a Judge in Chambers have been wrongly set aside and that irreparable damage will ensue.