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War Horse: the musicians who will not be returning to the trenches (or orchestra pit)

War Horse is a personal favourite of mine. But it can't be just me who's a fan, over the past few years the play has been extremely successful. And part of this success must be down to War Horse's ability to capture its audience's imagination and hearts at the same time.

However, as the recent case of Ashworth & Ors v The Royal National Theatre [2014] EWHC 1176 (QB) shows, a group of people who may not have such warm feelings towards the National Theatre and the play are the musicians who used to perform in it.



Since War Horse's inception in 2007, the National Theatre had always used a live orchestra during productions. However, over the last couple of years there has been a gradual move towards pre-recorded music. As a result, the musicians' roles in War Horse have been dramatically reduced.

In March 2014, the National Theatre gave notice to the musicians to terminate their contracts on grounds of redundancy. However, according to their contracts, the musicians' engagement could only be terminated by either:

(a) the musician giving two weeks' notice to the National Theatre;

(b) the National Theatre giving two weeks' notice to the musician of the closure of War Horse; or

(c) the National Theatre giving one week's notice to the musician within 26 weeks of press night.

Clearly, none of these circumstances applied.


Application to the High Court

In response, the musicians applied to the High Court for specific performance of their contracts (i.e. that the National Theatre be required to re-engage the musicians to perform in War Horse until the trial of their claim).

However, the Court refused to grant the application and held that specific performance would only be appropriate in exceptional cases – which, unfortunately for the musicians, did not apply in this case.  The National Theatre's loss of confidence was a primary barrier to an order being made, not to mention the practical difficulties of reintegrating the musicians when the play had effectively been re-designed to work exclusively with recorded music.

A key factor for the Court in refusing specific performance was the breach of Article 10 of the European Convention on Human Rights. The Court was satisfied that Article 10 is intended to protect artistic expression and this includes decisions of producers and artistic teams in staging plays. Therefore, granting an order for specific performance would have interfered with the National Theatre's right of artistic freedom and would have prevented it from continuing with the play in the form that it chose. Interestingly, however, the musicians’ right of artistic expression had not been interfered with, as they were still free to play their instruments, albeit not during War Horse productions.

It was also considered that any losses suffered by the musicians as a result of the refusal to grant the order could be adequately 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 the same way.

Despite the dismissal of the musicians' application, the Court held that the prospects of success of the musicians' claims for breach of contract at trial were strong. The musicians' contracts simply did not provide for termination for the reasons given by the National Theatre. As set out above, termination could only occur in limited circumstances, none of which applied in this case. If the National Theatre had wanted a termination provision due to creative decisions as to the staging of War Horse, this should have been included in the musicians' contracts.


What does this mean for employers?

The outcome of the War Horse case will be welcome news for employers as it reinforces the long-standing principal that courts will only order specific performance of employment contracts in exceptional circumstances.

However, it is interesting that the argument was raised by the musicians in the first place. A wise employer should be aware of what seems to be an increasing trend to focus on the equitable remedies potentially available for breach of contract.

The show must go on…


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