Let the record play

Luke Patel.

In the High Court case of Ashworth and others v The Royal National Theatre the Claimants, a group of musicians, were unsuccessful in their application for an interim injunction to require the Defendant, The Royal National Theatre (“RNT”), to continue to engage them in the production of War Horse until the hearing of their claim for breach of contract.

The Claimants were engaged by the RNT in March 2009 to play their instruments in accompaniment with recorded music in the RNT’s production of War Horse. However productions of War Horse in other parts of the world have relied wholly on recorded music and as such it was decided by the Co-Director and the Composer of War Horse that it was better for accuracy and impact to rely on recorded music for the play.

Luke Patel.
Luke Patel.

Initially the involvement of the Claimants in the production was reduced to them playing their instruments during one short scene only with the remainder of the music in the play being recorded.

On 4 March 2014 the RNT sent the Claimants letters of termination stating their contracts would expire on 15 March 2014 on the grounds of redundancy (i.e. the music in the play would now be recorded as opposed to live).

In response the Claimants issued a claim against the RNT claiming breach of contract. At the same time the Claimants filed an application for an interim injunction (or specific performance) requesting that the RNT be required to employ them in the production again until the trial of their claim.

The court dismissed the Claimants’ application for an interim injunction. The court found that there had been a breakdown in ‘trust and confidence’ between the Claimants and the RNT and an injunction reinstating the Claimants into the production was likely to be unworkable.

The court also held that the case was not exceptional, and that damages would be an adequate remedy for the Claimants.

Further, the court was not persuaded that specific performance or a mandatory injunction would be granted at the trial of the Claimants’ claim for breach of contract.

The court also considered that the decision of the Co-Director and Composer to rely only on recorded music was a decision made in accordance with their ‘right of artistic freedom’.

This right derives from Section 12 of the Human Rights Act 1998, which provides that when considering whether to grant relief which may affect the right of freedom of expression as contained in Article 10 of the European Convention on Human Rights (“ECHR”), the court must have particular regard to the importance of that right.

The Judge held that the RNT’s right to freedom of expression as to how it produced the play would be interfered with should the Claimants be reintroduced into the play.

Even though the Claimants were unsuccessful in their application for an interim injunction the Judge did indicate that their prospects of success at the trial of the breach of contract claim were strong.

The case is an example of the stringent test Claimants must pass in interim relief applications. Furthermore, human rights legislation was held to be applicable in this case and this may set a precedent for future cases where ECHR provisions are used in a similar context.

The Musicians’ Union, which backed the five instrumentalists in the case, said the Claimants are considering whether to appeal.
We at Blacks have experience in handling applications for interim injunctions and breach of contract claims.

Please contact
Luke Patel on 0113 227 9316
or by email at


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