Full case report
Ashworth v Royal National Theatre
Reference  EWHC 1176 (QB)
Court High Court (QBD)
Judge Cranston J
Date of Judgment 15 Apr 2014
Interim relief- specific performance- freedom of expression- breach of contract
The Claimants were professional musicians engaged to play in the Defendant’s production of War Horse at the New London Theatre. Between March 2009 and March 2013, the Claimants played wind instruments to accompany the recorded music throughout the performance. They also appeared on stage during one scene.
Other productions of War Horse had not involved a live band and relied wholly on recorded music. In light of that, and because both the co-director of War Horse and the composer concluded that it was better for accuracy and impact to deliver the score through recorded music, D took the decision to move to a production in London where no live band was necessary and all the music was recorded. On 4 March 2014, D sent the Claimants letters giving notice of termination of their contracts to expire on 15 March 2014. On 15 March 2014, the Claimants affirmed their contracts. They attended the New London Theatre to perform their usual obligations but were turned away.
The Claimants applied for an interim injunction, or alternatively specific performance, to require D to continue to engage them in the production of War Horse until the trial of their claim.
Cranston J applied the test for interim relief set out in American Cyanamid Co v Ethicon Ltd  AC 396.
1. Whether there was a serious question to be tried with a real prospect that the Claimants would obtain specific performance or a final injunction in substantially the form of the interim relief sought.
2. If so, whether damages would be an adequate remedy for them for the interim period?
3. If not, whether the balance of convenience lied in favour of the interim relief sought.
Dismissing the application for interim relief:
1. There was a serious issue to be tried on the question of whether D was contractually entitled to terminate the Claimants’ contracts on the grounds set out in its 4 March 2014 letters.
The plain words of the contract did not cover what D had purported to do in this case. The contract set out the circumstances in which the Claimants’ engagement could be terminated (see - of the judgment), but did not include a termination provision in the event of creative decisions as to staging the play, despite the fact that it would have easy to do so. Although an authoritative interpretation of the contract could only be given at trial, the Claimants’ prospects on this aspect of the case were strong.
However, Cranston J was not persuaded that specific performance or a mandatory injunction would be granted at trial. The well-established principle that the remedy of specific performance, or an analogous injunction, should not be available to require an employer who has wrongfully dismissed employees to take them back had been restated in in Geys v Société Générale  UKSC 63. The present application was not an exceptional case; thus loss of confidence was the primary block to this type of relief.
In addition, section 12(4) of the Human Rights Act 1998 provides that, in considering whether to grant any relief which may affect the right to freedom of expression, the court must have particular regard to the importance of that right. The section refers to artistic and related material and the Strasbourg jurisprudence was clear that Article 10 protected artistic expression. The decisions of producers and artistic teams in staging plays were protected by Article 10. Here, the effect of the order sought would be to interfere with D’s right of artistic freedom. It would prevent it from continuing with the play in the form which it judged to be artistically preferable and would involve the court dictating how the play could be produced by requiring it to incorporate a live band. That was a clear interference with the right and was neither necessary nor proportionate to the protection of the rights of the Claimants under Article 10(2). The Claimants’ own rights to freedom of expression were not in any way curbed, since they could continue to play their instruments, albeit not in War Horse.
2. The award of damages would be an adequate remedy to cover the loss sustained between the instant hearing and the trial.
There would be no difficulty in quantifying the Claimants’ loss to an expedited hearing. In any event, judges were accustomed to assessing damages in situations more complex than this.
3. The balance of convenience lied firmly against granting the interim relief sought.
Refusal was the course which was likely to involve the least risk of injustice if the decision turned out to be wrong. The relief sought would involve unwinding the production of War Horse without the band and forcing the creative team to work with musicians pending trial, despite them not believing that they contributed positively to the play. If the interim relief was not continued at trial, damages would not be an adequate remedy for D. Although the Claimants would be without their current income for the interim period, D had agreed not to take any point about their non-attendance at work regarding affirmation of the contact, so they could seek employment elsewhere.
The decision reinforces the well-established principle that the court will not enforce agreements that are strictly personal in nature. It is noteworthy however for its strong emphasis on the interference with artistic expression that would occur if the National Theatre were made to reintegrate a band into the production. Interestingly, the role of Article 10 in the application of the American Cyanamid test was one which, the Judge noted, seems not to have been considered previously.
Slater & Gordon for the Claimants, Harbottle & Lewis for the Defendant
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