Secret Mode Limited & Anor v Victura, Inc

At an interlocutory stage, the court should not conduct a mini-trial. Where both claims raise a serious issue to be tried and damages are not an adequate remedy, the decisive question is the balance of convenience, assessed by the risk of irremediable prejudice. The court should examine the practical consequences of granting or withholding relief, rather than apply a rigid presumption merely because an injunction is mandatory. Relevant considerations include expertise, funding, delay caused by transferring development, the value and confidentiality of source code, the parties’ ability to meet cross-undertakings in damages, and the possibility of preserving useful collaboration pending trial. The court refused to transfer development or publishing control to either side and maintained the contractual status quo.

Secret Mode Limited and Six Days Holdings Limited sought interim relief against Victura, Inc in a dispute concerning a publishing agreement for the video game Six Days in Fallujah. The Publisher claimed that it had validly exercised a contractual Step In Right after rejecting milestone builds and sought access to development materials, including source code. Victura claimed that it had terminated the Agreement and sought interim restoration of development and publishing control, together with protection against misuse of confidential information and dissipation of revenues.

A preliminary issue concerning without prejudice privilege was also determined. The central question was whether either party should receive practical control of development and publication before trial, and whether the balance of convenience justified disturbing the existing allocation of roles.

1. A preliminary evidential ruling held that a video call on 9 April 2026 attracted without prejudice privilege. The related witness statement and other evidence of that call were not admitted.
2. Both sides’ claims raised a serious issue to be tried. Neither side established that damages would be an adequate remedy if the other obtained interim relief. The court therefore applied the balance of convenience under the approach in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405.
3. The court would not apply a rigid rule requiring a high degree of assurance merely because the relief was mandatory. The proper task was to compare the practical risks of irremediable prejudice. The mandatory character of the relief was relevant because requiring positive action could increase that risk, but classification alone did not determine the result. A disparity in the strength of the parties’ cases could be relevant in principle under Series 5 Software Ltd v Clarke [1996] All ER 853, but the technical evidence did not permit a reliable preliminary merits assessment.
4. Victura had the expertise to develop and publish the Game. The Publisher had sufficient access to development expertise and sufficient publishing expertise. A transfer of source code would create a real risk of material delay while a new developer became familiar with it. The source code was treated, for present purposes, as containing potentially significant proprietary and secret techniques.
5. Victura lacked sufficiently certain resources both to complete development and publication and to give realistic assurance under its cross-undertaking. The Publisher had sufficient liquid resources for the estimated work and an appropriate cross-undertaking, although the possible loss arising from delay or poor development could be substantial.
6. Victura’s application was refused because the uncertainty of its funding and its inability to provide adequate security weighed forcefully against transferring control to it. The Publisher’s application had substantial supporting factors, but the risk of giving it access to valuable source code before trial, the possible illegitimacy of the alleged Step In exercise, delay during handover, and the risk of worsening the parties’ relationship outweighed those factors.
7. The court made no order transferring development or publishing control and left the contractual status quo in place: Victura remained developer and the Publisher remained publisher. The Publisher was not understood to resist providing Victura with developer access to the PlayStation and Xbox portals, but the court would not require the Publisher to surrender its own publisher access.

No appellate history is stated. On 3 June 2026, Fancourt J expedited the hearing of the interim applications and made interim holding orders.