Travails of the War Horse orchestra
23 April 2014
Ashworth and others v the Royal National Theatre  1176 – read judgment
Anyone who saw one of the early performances of War Horse in its first season at the National Theatre will remember how profoundly moving was the live music, with the musicians visible along the sides of the theatre above the stage. Since that highly successful (and profitable) first season the role of the orchestra had been radically reduced, and now looks as if it is about to vanish altogether.
War Horse opened at the Olivier Theatre in 2007, but since 2009 it has played at the New London Theatre. The claimants were engaged in March 2009 to play their instruments in the new production, as a small company of wind players accompanying recorded music. Productions of War Horse in other parts of the world have 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. The National Theatre sent the claimants letters giving notice of termination of their contracts to expire on 15 March 2014. In the letters the National Theatre stated that the grounds were redundancy.
The claimants sought an order from the court, prior to the trial of the main action, to require the National Theatre to continue to engage them in the production of War Horse until the trial of their claim. They also relied upon the right to artistic expression protected by Article 10 of the human rights Convention.
With the backing of the Musicians’ Union, the claimants contended that this termination of their contracts with the move to recorded music would be in breach of the collective agreement between the Society of London Theatres and the MU.
The new cast of the production had rehearsed at all times without musicians and had no experience of a production with live music. But the contract between the musicians did not cover what the National Theatre was purporting to do. There has never been a case where a producer under this collective agreement has terminated a musician’s contract, without the musician’s agreement, for any reason other than illness or old age, disciplinary action or the closure of the production.
The National Theatre argued that since it had abandoned its orchestra for the play, the claimants’ engagement was at an end, since the NT had the right to terminate which was implicit in the purpose of the engagement or on the basis that the contract was discharged by performance.
The difficulty with this submission, Cranston J pointed out, was that it enabled the National Theatre to “abolish its orchestra overnight” to avoid the specific provisions of termination by notice set out in the claimants’ contracts.
But the NT contended that it was not a commercial sensible outcome that the claimants should have a continuing right to be paid in circumstances where there was no longer any need for an orchestra and so no longer a part for them to contribute to the play. However, neither this, nor the arguments based on implied terms of the contract, was enough to convince the judge that the plain words of the contract should be overridden. There was, in his view, a serious issue to be tried on the question of whether the NT was contractually entitled to terminate their contracts in the way they did.
However, the remedy the musicians sought in this application was not available to them. They were seeking, in effect, an order for specific performance, or a negative injunction preventing the NT from breaching the contracts. The practical effect of both would be to require their reengagement.
Reasoning behind the judgment
Specific performance in these circumstances is notoriously difficult:
as a rule of thumb that a court will not order specific performance of a contract calling for personal service where trust and confidence has broken down, a continued relationship is unworkable for some other reason, or constant supervision by the court might be required.
The musicians sought to overcome this traditional reluctance by pointing out that there had been no criticism of their professional integrity or honesty; that continuing to perform with the cast needed no more radical adjustment than a few more rehearsals to get the cast used to working with musicians, and that there could be no issue of continuous supervision by the court since the parties have operated under these contracts for more than 5 years and done so without any difficulty.
But Cranston J was not at all persuaded that specific performance or a mandatory injunction would be granted at the full trial of the case, which was not “exceptional”. It was a “standard case where on a traditional analysis, loss of confidence was the primary block to this type of relief”:
Loss of confidence is fact specific. A role in War Horse is miles away from the impersonal organisation referred to by Lord Wilson in Geys v Société Générale 1 A.C. 523 and from the situation in Powell v Brent LBC  ICR 176, where the employee had been performing the superior role, and had the confidence of her superior. The plain fact is that the production of a play necessarily entails close cooperation between all those involved, the actors and those directing and producing the play.
In the judge’s view, the claimants’ prospects at trial for breach of contract by the National Theatre were strong, but that an award of damages to them at trial would be adequate compensation. They had not persuaded him of the case to order interim relief pending trial, to reinstate a live band in the production of War Horse and to engage each of them as part of it. As far as the claim under Article 10 was concerned, the right to artistic expression had to be considered in relation to the defendants as well. Significant in the balance against interim relief was the interference with artistic expression in requiring the National Theatre to reintegrate a band into the production. Sections 12(1) and 12(4) of the Human Rights Act 1998 required the judge to have particular regard to this aspect of the relief sought by the claimants.
The National Theatre’s artistic judgment was that a live band did not provide the “same quality and impact of performance as can be produced through the use of recorded music and professional actors.” It is sad that those responsible for the continuing performances of this tremendous play have seen fit to decide, on the audience’s behalf, that live musicians cannot contribute positively to the play and that the play is better off without them. But theatres, like anyone else, have profit margins to attend to and it is obvious that War Horse, an expensive play to cast with its 36 actors and, until recently, the five claimant musicians. The move to recorded music only has no doubt produced financial benefits for the defendants.
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