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No specific performance of the War Horse musicians’ contracts

14 May 2014

The National Theatre has hit the headlines recently when a group of musicians brought legal proceedings to stop their contracts from being terminated. But what was it all about?
The musicians were engaged in March 2009 to play during each performance of War Horse. Their contracts provided for limited circumstances when their engagement could be terminated by the National Theatre - by giving one week’s notice within 26 weeks of press night or two weeks’ notice if the production was to close. There was no general right to terminate the contract.

Following the National Theatre’s decision to move from live music to recorded music in 2013, it gave notice of redundancy to each of the musicians on 4 March 2014, informing them that their contracts would end on 15 March 2014. The musicians considered this to be a breach of contract and brought proceedings in the High Court on the basis that the National Theatre was not permitted to terminate their contract in these circumstances. The musicians sought an interim injunction for specific performance of their contract - in other words, an injunction which would force the National Theatre to allow them to continue working until a full hearing could be listed.

In deciding whether to grant an interim injunction, a High Court had to take into account whether the musicians had a strong arguable case, the adequacy of damages as a remedy and the balance of convenience.

On the first point, the High Court found that the musicians did have a strong arguable case, as the contract did not give the National Theatre the right to terminate their engagement in these circumstances. However, it was not persuaded to issue the interim injunction for specific performance as the working relationship between the musicians and the National Theatre’s creative team had broken down. The High Court concluded that damages were an adequate remedy in this case. Turning its mind to the balance of convenience, the High Court noted that there would be practical difficulties in introducing live music back into the production, which had been changed since the musicians’ contracts had ended on 15 March.

Even with strong prospects of success, interim injunctions for specific performance are not commonly granted. There must be exceptional circumstances and it was noted by the High Court that “as a rule of thumb, 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”. This is a key consideration for anyone who is seeking specific performance of a contract.

Michelle Tudor
Barlow Robbins