Musicians not entitled to specific performance of their contracts.

In Ashworth and others v The Royal National Theatre (2014) EWHC 1176 (QB), the High Court has refused to grant an interim injunction to a group of musicians who worked on the Royal National Theatre’s production of ‘War Horse’ in order to prevent the Royal National Theatre from dispensing with their services.

The High Court declined to order specific performance of the contracts of musicians appearing in a play produced by the National Theatre after they had been dismissed following a decision to move to recorded music predominately for artistic reasons. The court held that such orders could only be made in exceptional cases, which this was not, and that damages would be an inadequate remedy for the musicians, whose case for breach of contract it judged to be strong.

In March 2009, the National Theatre engaged musicians to play their instruments in the National Theatre’s production of War Horse.

In March 2013, the National Theatre decided to move from using live music to recorded music. Initially, following a conciliation process, the Royal National Theatre reduced the musician’s roles to playing in one short scene. Then on 4th March 2014, the Royal National Theatre wrote to the musicians giving notice of termination of their contracts on the ground of ‘redundancy’ because it wished to disperse with their services entirely.

The musicians’ contracts only provided for such termination on closure of the production and they issued claims for breach of contract on the basis that the Royal National Theatre was not entitled to terminate their contracts for redundancy. They sought an interim injunction, or alternatively specific performance, to require the Royal National Theatre to continue to engage them in the production of ‘War Horse’ until the trial of their claim.

The court dismissed the application. The court held that the prospects of success of the musicians’ claims for breach of contract were strong. It found the contract did not provide for termination for the reasons given by the National Theatre. However, while the case for breach of contract was strong, the case for ordering specific performance of the contracts was not.

Another issue that the court considered was whether the granting of specific performance or an equivalent injunction would interfere with the parties’ right to freedom of expression contained in Article 10 of the European Convention on Human Rights. In this case, the Court considered that an order for specific performance of the contracts would interfere with the National Theatre’s right of artistic freedom and prevent it from continuing with the play in the form which it judges to be artistically preferable. It would also allow the court to dictate how the play can be produced by requiring it to incorporate a live band. Such an order was not necessary or proportionate to the protection of the musicians’ rights, which it considered were adequately protected by a claim in damages, and whose own rights to freedom of expression were not curbed since they could continue to play their instruments, albeit not in ‘War Horse’.

In terms of the balance of convenience, the court held that specific performance of the contracts would involve “unwinding the production of War Horse without the band and forcing the creative team to work with musicians pending trial, despite not believing that they contribute positively to the play.” If specific performance were not considered at trial, it was unlikely that damages would be an adequate remedy for the National Theatre. Therefore, the refusal of the interim relief was the course which was least likely to involve the risk of injustice if it turned out to be wrongly made. Accordingly, the application for relief was refused and the claim awaits a full trial.

James Haley, Solicitor at Just Employment Solicitors

James Haley, Solicitor & Director, Just Employment Ltd.


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