Suing the State in Tort

• Section 2(1A) of the State Proceedings Act


  No proceedings shall lie against the State in respect of any act or omission of a servant or agent of the State unless the act or omission would have give rise to a cause of action in tort against that servant or agent or his estate
• Article 1384 alinea 3 du Code Civil Mauricien


  Les commettants sont responsables du dommage cause par leurs preposes dans les fonctions auxquelles ils les ont employes
• Suing the State as Defendant in tort

  1. Section 2(1A) of the State Proceedings Act provides that no proceedings shall lie against the State in respect of any act or omission of a servant or agent of the State unless the act or omission would have give rise to a cause of action in tort against that servant or agent or his estate

  2. Article 1384 alinea 3 of the Civil Code Mauricien provides that the commettants are responsible for the damage caused by their preposes in the functions to which they have employed them

  3. The action should be directed against the State as commettant and the civil servant as prepose

  4. The wordings in the plaint must disclose the "lien de preposition" of the Commettant and prepose and to specifically plead the wrongdoings of the prepose that amount to a tort for which the State would be held liable as Commettant
• Failure to aver the "lien de preposition" in the pleadings is fatal to the case of the Plaintiff as it is not a mere technicality and it goes to the substance of the cause of action and to the root of the case
• The State or any of its ministries or departments cannot be sued directly as a tortfeasor
• An action can only be brought against the State or any of its ministries or departments in respect of any tortious act committed by its "prepose" in the performance of his duty
• There should be a specific averment in the plaint with summons that the defendant is liable as a "commettant" for the tortious act committed by its "prepose"
• Whenever no proper "lien de preposition" has been averred in the plaint, such plaint discloses no cause of action in tort against the State and its Ministry
• De Simard de Pitray v State of Mauritius 2017: As far as the State is concerned since it is trite law that it can only be sued as a commettant, the averment of a "lien de preposition" was necessary to disclose the precise cause of action under article 1384 and to indicate that the State was in a relationship of commettant vis-a-vis those said to have committed wrongful acts to the prejudice of the plaintiff
• The elementary principle under article 1384 of the Civil Code that the commettant can only be held liable if it is proved that the "prepose" is also at fault is also applicable to the State
• Naga v Commissioner of Police 2017 reiterated the case of Gowry v State 1996 where it was held that no action can be brought against the State unless the acts complained of also give rise to an action against its servant or agent, so that the State can avail itself of whatever defence which limits or negatives the liability of its "prepose" in respect of a tort
• The Commissioner of Police is not the employer of the police officers concerned and therefore he cannot be sued in his personal name as a commettant of the said police officers
• Prepose


  A person who performs a specific act or function under the direction or control of another
• Commettant


  A person who entrusts another with the care of their interests
• Jhumka v Commissioner of Police 2011: The fact that the Police Force is under the command of the Commissioner of Police, who is empowered under the Police Act to make standing orders and give administrative directions with which the police officers must comply, does not make the Commissioner of Police their employer nor a commettant as contemplated by alinea 3 of article 1384 of our Civil Code
• Pursuant to Section 4(1) of the Public Officers' Protection Act, all civil actions against the State are time barred by a period of 2 years from the date of the fact, act or omission which has given rise to the action, suit or other proceeding
• Pursuant to Section 4(2)(a) of the Public Officers' Protection Act, the plaintiff must serve on the Defendants, i.e the State and the civil servant ("prepose") a notice, in the form of a Mise en Demeure of the subject matter of the complaint ONE FULL MONTH prior to initiating any action
• The notice must set out the claim in similar terms to those in the plaint with summons, covering the same subject matters
• The plaint was lodged before the expiry of the one month's prior notice and in the light of the authorities cited, the plaintiffs have failed to comply with the requirements prescribed under Section 4(2)(a) of the POPA
• Along with the notice Mise en Demeure, a copy of the draft Plaint with Summons and the detailed grounds and averments, "lien de preposition" between the State as commettant and the civil servant as "prepose" must be served on the Attorney General


  The Attorney General can, within a period, make representations to the Court
• Notice


  Must be served 'at least one month' prior to the lodging of the case
• In the case of Dhurbarrylall v Bhadain 2014, it was held that when it comes to prior notice, Section 38(1)(b) of the Interpretation and General Clauses Act was applicable so that there should have been one full month between the date of the service of the notice and the lodging of the plaint
• Along with the notice Mise en Demeure

  1. Copy of the draft Plaint with Summons and the detailed grounds and averments, "lien de preposition" between the State as commettant and the civil servant as "prepose" must be served on the Attorney General

  2. Attorney General can, within a period of 28 days from service of the notice make a demand of particulars

  3. If after the lapse of 28 days, there has been no request from the Attorney General for demand of particulars, then a copy of the Plaint with Summons is served on the Attorney General and on the public officer after lodging the case

  4. The Plaint with Summons must be served 14 clear days before the returnable date
• In the recent authority of Jolicoeur v State of Mauritius 2020, the defendant has raised a plea in limine litis which reads: (a) the notice "mise en demeure" does not disclose any cause of action quoad it; and (b) the lien de preposition had not been properly established
• Cause of action


  The notice served on the defendant must mention the actual cause of action as set out in the plaint with summons
• In the case at hand, there is no other party than the State and the notice does not refer to the State as commettant of the police officers who were involved in the arrest of plaintiff no. 1
• In the case of Migale v Ministry of Health and Quality of Life 2015, it was held that although mere technicalities should not be allowed to be an obstacle to a claim but the failure to aver a "lien de preposition" is not a mere technicality
• Migale v Ministry of Helath and Quality of life 2015: In the present case, whilst the notice wrongly termed the Commissioner of Police as commettant of the police officers, the plaint with summons correctly termed the defendant as their commettant. In the light of such a departure from the requirement of the law, the Court has no other option than to set aside the plaint with summons
• In the case of Chow v Padiachy Contractor ltd 2016, the third party, i.e State of Mauritius has raised a plea in limine litis and has moved that the defendant's second amended plain with summons be dismissed
• Legal position in respect of civil suits against the State

  • A notice of the subject matter of the complaint must be served on the State one month prior to initiating any action as provided for under Section 4(2)(a) of the POPA
  • The action must be lodged within 2 years as provided for by Section 4(1) of the POPA
  • The "lien de preposition" of "commettant" and "preposes" existing between the State and its employees or agents must be averred in the plaint to reflect that the State is being sued in its vicarious capacity under article 1384 of the Code Civil
  • The wrongs committed by the State's "preposes" or agent must also be particularised in the plaint
• Irrespective of the fact that the defendant has entered an action against the State by way of third party procedure, compliance with the above requirements is still mandatory
• In the case of Jean Noel Louise v State 2003, Section 4(2)(a) of the POPA requires that the notice should satisfy the following conditions: a) it should be written; b) it should disclose the action; c) it should disclose the subject matter; d) it should be given to the defendant
• Section 4(2)(b) of the POPA expressly provides that "no evidence shall be produced at the trial except of the cause of action as specified in the notice. Section 4(2)(c) of the POPA stipulates that "in default of proof at the trial that the notice under paragraph (a) has been duly given, the defendant shall be entitled to judgment with costs"
• In the case of Gunesh v NTC 2010, it was held that Section 4(2)(b) and (c) of the POPA are couched in peremptory terms and failure to serve a notice specifying the defendant's cause of action against the State would preclude the defendant from proceeding with its third party procedure against the State
• The limitation of action provided by Section 4(1) of the POPA is a defence which is also available to the State by virtue of Section 2(4) of the State Proceedings Act. In the present matter, the limitation period of two years started running as from 26 May 2009 when the Court upheld the plea in limine raised by the State in the main case and dismissed the plaintiffs' plaint against it. The third party proceedings having been entered more than 2 years after 26 May 2009, it is accordingly time barred
• By virtue of Section 2(1)(a) of the State Proceedings Act, the State can only be liable as a "Commettant" under article 1384 of the Code Civil for the wrongs committed by its preposes. It was therefore incumbent on the defendant not only to plead the "lien de preposition" between the State and the tortfeasor but also to specifically plead the wrongdoing of the "prepose" that amounts to a tort for which the State would be held liable as "Commettant"
• In the case of Freemantle Media Operations v MBC 2014, it was held that "it was incumbent therefore upon the MBC not only to aver the wrongful or illegal acts which constitute faute but it also had to aver the reasons for which the State is being held legally accountable for such faute. For that purpose the State could only be sued in its capacity as commettant. However, the plaint does not contain any averment to the effect that the State is liable as commettant for any faute committed by its preposes"
• In the case at hand, the SC held that the plaint with summons did not show any averment of the act or omission of the Ministry and/or preposes which would constitute a tort for which the State could be held liable. In the absence of such averments, the amended plaint does not disclose a cause of action
• In the recent authority of Dooboree v State of Mauritius, it was held that "faute lourde" or bad faith is a necessary element which the plaintiff ought to aver in his amended plaint. However the mere omission of the words ''bad faith'' or ''faute lourde'' would not have been fatal to the plaint if sufficient facts constituting the alleged faute lourde or bad faith had been averred which, if found proven, would have established ''faute lourde'' or bad faith such as to form the basis of an action in damages
• In the recent authority of Pick and Buy Ltd v State of Mauritius 2020, the SC stated that, referring to the authority of Transpacific, "if article 1384 is relied on, the individual whose faute is the basis of the action should be identified and it should be shown that the faute is a faute lourde". In the present matter, the appellants needed to aver and establish faute lourde in order to succeed in their claims