Musicians in injunction score

This is a High Court decision regarding the group of musicians who worked on the Royal National Theatre’s production of War House. The musicians were engaged in March 2009 to play in this production. They accompanied the recorded music throughout the play. In 2012 the RNT decided to change the production to remove the live band but, following consultation, decided instead to reduce the role of the musicians to just one short scene. Finally in 2014 the RNT gave notice to the musicians to terminate their contracts on the ground of redundancy because it not longer wished to use them at all.

Their contracts only provided for termination on closure of the production so they issued claims for breach of contract on the basis that the RNT was not entitled to terminate their contracts for redundancy. In doing so they sought an interim injunction or alternatively specific performance to require the RNT to continue to engage them until the trial of their claim.

Both applications were refused, although the High Court considered that they had an arguable case and that their prospects of success were strong. The contract specifically set out the circumstances in which their employment could be terminated; which did not include the current situation. However, in order to provide interim relief, the Court had to be persuaded that they would obtain specific performance or a final injunction at trial; that damages would not be an adequate remedy in the meantime; and that the balance of convenience lay in their favour.

Overall the Court considered that they would unlikely to be granted specific performance at trial - in other words, to be allowed to continue playing. It considered that loss of confidence, which is a particular obstacle to granting specific performance, was clearly in evidence here because the RNT did not believe that the musicians were contributing positively to the play. Furthermore the way in which the play was now produced had changed considerably from the original version, so that there was no longer a role for live music. The court was also concerned that, if the musicians were imposed upon the RNT, this could have a destabilising effect on the production.

The Court also went on to consider whether the granting of specific performance or a equivalent injunction would interfere with the parties’ right to freedom of expression in article 10 of the European Convention on Human Rights. The Court considered that the effect of such an order would indeed interfere with the RNT’s right of artistic freedom since it would prevent it from continuing to produce the play in the form which it considered to be artistically preferable. In terms of the balance of convenience, while these would make little difference to the musicians during the period before the final hearing, there would be considerable inconvenience to the RNT in having to recreate its performance to make way for the musicians to play, even though it did not consider that they contributed to the way in which the play was now produced.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222