Marine Blast v. Targe Towing Limited, Scheldt Towage Company.

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Marine Blast v. Targe Towing Limited, Scheldt Towage Company 2003/1335 Court of Appeal (Civil Division) CA Before: Lord Justice Mance Monday, 8th December 2003 On Appeal from Central London County Court (His Honour Judge Hallgarten QC) RepresentationMr. A. Parsons (instructed by Messrs Holman Fenwick Willan,London, EC3) appeared on behalf of the Applicant.Mr. S. Croall (instructed by Messrs BPE, Cheltenham) appeared on behalf of the Appellants.JUDGMENTLORD JUSTICE MANCE:1. This is an application for security for costs of the appeal, made somewhat late in the day, although not a great deal has been made of that in oral submissions before me. It is made pursuant to CPR 25.13(2)(c) on the basis that the appellant is a company in respect of which there is reason to believe that it will be unable to pay the defendants' costs if ordered to do so. In those circumstances, that condition being satisfied, the court has jurisdiction under subparagraph (1) to make an order for security for costs if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order.2. The main argument has been whether that condition is satisfied, although questions of discretion have also been touched on, particularly by the applicant (the respondent to the appeal) in anticipation of argument being directed to that issue. In the event, the main contention was whether the condition was satisfied. I take account of the points made in the skeletons on discretion.3. It was suggested by the applicant that the prospects of the appellants' appeal were slight and that that should incline the court more readily to make an order for security. This is a case which falls within the classic mould of a case where, permission having been given, it cannot be said that there is no real prospect of success. As far as I am in a position to judge the merits, it seems to me that this is a well arguable appeal and that any further assessment of the merits would be inappropriate. I approach this application by the respondent on that basis.4. Leaving other questions going to discretion aside and reverting to the condition which I have read out, a good deal of information has been put before the court, but I have to say that it is very far from complete. That is in large measure, if not entirely, the fault of the appellants, the respondents to this application, since they have not filed any accounts in respect of
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any period subsequent to 30th September 2001. The accounts filed in respect of that period consist solely of balance sheets since they have an exemption as a small company in respect of the provision of any profit and loss account. Recently, in order to attempt to address the absence of information, they have produced from Browne & Murphy, chartered and certified accountants, who were the auditors who certified their 2001 accounts, a statement of affairs as at 30th November 2003. This is on one sheet of paper. In answer to adverse comments on that, Browne & Murphy have faxed a ...

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