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David Reade QC and Jeremy Lewis headline in a ‘Specific Performance at the National’

Could the National Theatre be required by law to engage musicians in the production of the War Horse?

In December 2012 the National Theatre took the decision to cease using a live orchestra during productions of the War Horse, from March 2013 the musician’s roles were dramatically reduced and in March 2014 the National Theatre gave notice to the musicians to terminate their contract on grounds of redundancy.

The Claimant musicians sought an injunction to require the National Theatre to engage them to play their instruments in the production of War Horse. 

The contract provided the National Theatre with express power to terminate in limited circumstances none of which applied to the facts of the case. There was therefore a serious issue to be tried in relation to whether or not the termination of the musicians was in breach of contract.

However, Mr Justice Cranston concluded that there was not a real prospect that the claimants would obtain specific performance or a final injunction requiring their ongoing inclusion in the production. Therefore the interim order would be refused. 

A key factor for the Court in refusing specific performances was the breach of Article 10 of the European Convention on Human Rights. The right to freedom of expression includes freedom of artistic expression. The Court recognised that Article 10 protects the decisions of producers and artistic teams in staging plays and that the order sought would be a disproportionate interference with that right.

In addition, the general principle is that the courts will not order specific performance of a contract involving personal service. The primary barrier to such an order is loss of confidence between the parties. On the facts of this case the close cooperation required by all those involved in the production of a play meant that specific performance was not likely to be granted at trial.Where the decision has been taken that live musicians do not contribute positively to the production such that the play is better off without them the forced inclusion of the musicians would have a destabilising impact. 

There were also issues as to the workability of reintegrating the musicians when the play had been re-designed to work exclusively with recorded music. Any losses suffered by the musicians by the refusal to grant the order could be compensated in damages whereas the requirement to rework the play and perform it against the artistic preferences of the producers could not be adequately compensated in damages. 

Ashworth & Ors v The Royal National Theatre [2014] EWHC 1176

David Reade QC and Jeremy Lewis are acting for the Royal National Theatre

Related link:  Profile of Lydia Banerjee 

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