D AND B FILMS DISTRIBUTION CO. LTD. v. FU NGAI FILM PRODUCTION CO. LTD.

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J U D G M E N T

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. These proceedings arise from an agreement over distribution rights in a particular film which the defendant is alleged at one stage to have granted exclusively to the plaintiff. At a later stage, following disagreements over other transactions, the defendant purported to grant the same rights to a third party. An injunction restraining the defendant and the third party from implementing that subsequent agreement was obtained ex parte, and continued inter partes although the second judge refused to order delivery of the negatives of the film to the plaintiff.

2. On the 10th December last year this Court, on appeal from the judge below, set aside the injunction and allowed thereby the third party to make use of a very advantageous distribution slot which it held during the Christmas period in the circuit of cinemas to which it had access. We gave the costs of the appeal and of the hearing below to the defendant.

3. The order of this Court was premised on an undertaking given in this Court by Mr. Swaine, who then appeared on behalf of the defendant, that the defendant would put up a bank guarantee of $2 million to cover any damages that might eventually be awarded against it in the action below. The order specified no time limit for the provision of that guarantee and so, on the 7th May this year, no guarantee having been forthcoming, at the request of the plaintiff and as a single judge of this Court I made an order staying the defendant's proceedings by way of taxation of its costs and ordered that the guarantee should be provided within five days. What was effectively an application to release the defendants from the undertaking, I refused. The guarantee still has not been provided.

4. Today's application by the plaintiff is on its face an application to vary the order for costs that we made on the 10th December, by deleting that order and substituting in its place an order that the defendant be liable to the plaintiff for the costs of the appeal and of the hearing below on an indemnity basis, with a like order for the costs of today. Nevertheless we understand from Mrs. Kaplan, who appears for the plaintiff today, that the application is in substance an application for a supplemental or alternative order, under what is commonly known as a slip rule, that is Order 20 rule 11; she has drawn our attention to the White Book, against marginal note 20/11/6, which suggests that the court:

"also has power to make by way of supplemental order any alternative order whatever which might be appropriate in the changed circumstances to secure the due performance of the defendant's obligations".

The authority for that is given as Northern Counties Securities Limited v. Jackson & Steeple Limited [1974] 1 WLR at 1133. Even then, reliance is not placed on that approach, for the facts of that case, it is said, are too far removed from the present. Mrs. Kaplan falls back instead on the inherent jurisdiction of this Court to, as she puts it, "police" its own orders.

5. The ground of the application seems to us to be, - it may not be exactly as Mrs. Kaplan puts it but we are unable to discern any significant difference, - that if there had been no undertaking offered the appeal would not have been allowed; the event then being the other way, the plaintiff would have been awarded its costs instead of the defendant. Speaking for myself in this respect, but otherwise for the court as a whole, and casting my mind back as best I can to December last year, I am by no means sure that that would have been sir of course, I cannot speak for my brothers.

6. In any event it is immaterial. We have sympathy with the position in which Mrs. Kaplan's clients find themselves with regard to their annual accounts, although it seems to us that it should not be beyond the wit of their accountants and the auditors to provide at least some measure of mitigation. But we are not satisfied that we have jurisdiction to make the order that is sought and which appears rather to be a disguised application for proceedings by way of contempt. We therefore dismiss the notice of motion. Unless counsel wish to address us on the question, we make no order as to costs.