The battleground

A recent example concerned a number of interim applications in a dispute over Six Days in Fallujah (SDF), described as a ‘documentary military shooter’, between its publisher, Secret Mode (the Publisher), and its developer, Victura (the Developer). SDF has been in development for over eight years, costing over $50m. 

Interim applications can be made by parties at any time, although typically before trial, and so mostly arise before determination of the underlying case. They are powerful tools in many instances that can force early settlement or costly decisions to be made by the other party. 

Here, interim applications were made by both parties. The Publisher asked the court for an interim injunction requiring the Developer to provide it, Secret Mode, with certain material related to SDF, including its source code. Conversely, the Developer asked the court, via two separate applications, to force the Publisher to give it, Victura, publishing control over SDF.

All the applications related to the underlying issue as to who has rightful control over the development and publishing of SDF.

Exchange of fire

In October 2025, Secret Mode and Victura entered into a publishing agreement whereby, in exchange for publishing rights, Secret Mode would pay the costs of publishing, including marketing, and provide up to $8m of funding to enable SDF to be completed. Part of the agreement involved Victura meeting certain development milestones. If a milestone was unsatisfactory, following two failed resubmissions, tthe Publisher could exercise step-in rights to essentially take control of the development of SDF. 

Between January and April 2026, Secret Mode rejected Milestone 0.6 and two resubmissions relating to it, citing persistent problems with SDF’s NPC AI system, which it asserted allowed it to exercise its step-in rights from 1 May 2026. Splash Damage, itself a developer and a company connected to Secret Mode, helped with Secret Mode’s review.

Victura alleges that Secret Mode, along with Splash Damage and Emona Capital (an investment adviser to a private equity fund connected to Secret Mode), pre-determined that Milestone 0.6 would be rejected and conspired to access Victura’s intellectual property in SDF. It further asserts that it terminated the agreement on 28 April 2026 on the grounds of Secret Mode’s repudiatory breach. 

No man’s land

It’s important to remember that the decision was only concerned with deciding the applications before it (although a number of necessary sub-issues were determined as well), each relating to the parties’ arguments on what the correct contractual position was. The Publisher wanted access to the game’s source code to exercise its step-in rights, whilst the Developer wanted publishing control over the game, including access to various developer portals. 

Ultimately, neither party was successful in convincing the court that interim relief was appropriate in the circumstances, with the court allowing the status quo to continue. 

The Developer failed because the court was unconvinced it had sufficient financial resources to develop and publish SDF, whilst also meeting any claims under its cross-undertaking in damages (a requirement for any party which wishes to be granted an interim injunction, if it turns out to have been wrongly granted at trial). The judge commented that Victura’s funding plans were based on ‘hope’.

The Publisher failed because of, among other things, the disparity of investment in SDF. At the date of the hearing, the Publisher had invested approximately $2.6m into SDF, whilst Victura had spent over $50m in its development. Interestingly, the court also found as a factor against the Publisher’s application the risk that granting interim relief to Secret Mode could reduce the possibility of a compromise between the two parties (the court specifically referencing that a formal mediation could help). 

The decision did not determine the substantive questions of whether there was any pre-determination of the milestone submission or whether the step-in rights could be validly enforced. These remain open questions, subject to the evidence that the court will hear if the case gets to trial. 

Truce

What the decision does show is that courts are readily recognising the value of mediation in cases such as these, where the parties are both clearly passionate and invested. The court stated that the parties shared a common interest in finishing the game and moving it towards open release, away from early access, which meant that some form of alternative dispute resolution would be appropriate. 

Separately, having a clear mechanism within a contract to resolve any disagreements, which is agreed with the assistance of professional advisers whilst relations are positive, can be especially helpful in providing an impartial space to settle these matters without the need to resort to litigation. Review what mechanisms you have in place now. 

Case Link: Secret Mode Limited & Anor v Victura, Inc [2026] EWHC 2185 (Ch) (https://www.bailii.org/ew/cases/EWHC/Ch/2026/2185.html)