(b) that having closely considered the matters pursued on the application to reopen, the Court is entirely satisfied that, even had paragraph 71 in its entirety not been included in the judgment, the very same decision as to serious case and balance of convenience would have been reached.
22 Finally, it is common ground that the judgment did not hand down, even at an interlocutory level, any finding [in the circumstances informed by the subject agreement] as to which party had title to the source code. That matter has naturally been left for final hearing. Indeed nothing in the interlocutory judgment will bind a judge who presides over the final hearing.
23 In the result, by reason of the matters earlier set out in these reasons, there was sufficient in the materials before the Court on the interlocutory hearing to justify an interlocutory finding of the matters set out in paragraph 71.
24 For those reasons, the notice of motion will be dismissed.
Costs
25 The remaining matter to be dealt with concerns costs. In that regard there is an application by the defendant that the plaintiff pay the defendant's costs of the adjournment application of 7 March 2003. There are cross-contentions as to the manner in which the costs of the hearing of the notice of motion should be treated with, in which respect the plaintiff seeks its costs of the notice of motion and the defendant contends that the costs of that notice of motion should be costs of the final proceedings. There is finally the question of costs of the notice of motion filed today dealing with the application for the Court to recall its reasons for judgment.
26 Dealing firstly with the most significant parameter of costs, namely the costs of the notice of motion seeking interlocutory relief, the judgment delivered on 15 March 2007 in self-explanatory terms travels through the number of somewhat difficult factual and legal parameters with which the Court had to deal in terms of the interlocutory application.
27 There is an important additional matter, which must be accepted. That is that the undertakings proffered to the Court by the plaintiff and referred to in paragraphs 68 and 69 of the main judgment only came forward during the hearing of the motion, as best I can recall it either late in the morning as to one of the undertakings and early in the afternoon as to the other, or in some such general sequence.
28 Ms Cochrane has submitted, and I accept, that the circumstances in which those undertakings came forward made it particularly difficult for the defendant to provide proper instructions on an informed basis. Mr Brennan contends that the undertakings which were announced in open court permitted of instructions being taken from the defendant, but to my mind, whilst certainly some attempts to take such instructions could presumably have occurred, it is particularly important that on an important case such as the present, a party being asked to closely consider the weight and significance of particular undertakings, be given a proper opportunity on an informed basis to make a decision as to whether or not the undertakings were acceptable. It is often extraordinarily difficult in the courtroom context, for parties to quickly readjust to a proffering of undertakings.
29 Certainly the giving of those undertakings represented an important issue in terms of the approach taken by the Court to the balance of convenience.
30 Another matter which Ms Cochrane has carefully addressed concerns what is suggested to have been an entirely justifiable approach taken by the defendant in its concern at the confidentiality of the source code and in its justification for resisting provision of the source code because of the high interest in its secrecy.
31 Whilst in many circumstances the Court's decision in respect of costs of an interlocutory application will be for the loser to pay the costs of the successful party, my own view is that the matters to which I have referred and the whole of the subject matter of this very bitter dispute concerning rights to which each party has claimed as particularly important source code, mandates the principled exercise of the Court's discretion being to order that costs of the notice of motion seeking interlocutory relief be costs of the proceedings.
32 In relation to the other two sets of costs, the defendant did succeed in its application for an adjournment on 7 March. That application and the matter before the Court on 7 March did lead to the Court effectively persuading the parties of the huge significance in having a very early hearing of the notice of motion. As I recall it, both parties very sensibly accepted as an accommodation an entirely new timetable to that which had been previously considered. In the event, the Court was able to deal with the matter on the following Monday and was able fairly expeditiously to produce a judgment.
33 To my mind, the principled exercise of the Court's discretion in relation to that adjournment application is to do exactly the same as with the interlocutory application for injunctive relief, namely, costs of the adjournment application of 7 March 2007 should also be costs of the cause.
34 Finally, in relation to costs of the application made today by the defendant to reopen the reasons for judgment, whilst the defendant has not succeeded in that regard, insufficient justification for a reopening being put forward, there being some question marks as to exactly how certain parts of the transcript should be read, it is true to say that the defendant has at least succeeded in obtaining from the Court in this supplementary judgment, a clear statement of what the defendant apparently always intended to put as its position. Likewise, and in relation to endeavouring to provide a seamless result which is fair to all parties, my own view is that costs of the defendant's application to reopen qua the notice of motion filed in court today should also be costs of the proceedings and orders will be made in relation to costs in the fashion I have now indicated.