The claimant in Filmflex Movies Ltd v Piksel Ltd issued an application seeking a mandatory interim injunction for the delivery up to it of source code (which had been used to develop software for video on demand technology) on the basis that it was contractually entitled to the same (the “Application”). The claimant claimed that it required the source code urgently, in order to obtain a contract with another party, for the development of advanced video on demand technology. In order to rule on the Application, the court would be required, among other things, to hear the parties’ arguments on contractual construction, which would require longer than the two hour time estimate that the claimant had listed the Application for. The court was therefore unable to accommodate the Application hearing until some two months later.
The claimant accordingly issued a further application for the delivery up of the source code to a third party (which it was envisaged would assess the viability of the source code for its potential advanced development) (the “Third Party”), as an interim measure, so that the claimant could still make some progress whilst it waited for the Application hearing to take place and therefore stood a better chance of obtaining the contract that it was seeking (the “Interim Interim Application”).
The Interim Interim Application was refused on the basis that:
- Damages were an adequate remedy – in the judge’s words, “there was nothing particularly magical about assessing the loss of a contract”;
- Even if (1) was incorrect, on the balance of convenience, the urgency was “arguably exaggerated”. The Third Party was a competitor of the defendant and it might be forced to divulge its trade secrets if the Interim Interim Application was granted. The judge also took account of the relatively short time frame to a determination of the issues related to contractual construction which the court had not yet considered.
Filmflex Movies Ltd v Piksel Ltd (unreported, High Court (Chancery Division), 12 December 2014)