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Why the War Horse Band Lost their Battle to Carry on Playing

Wednesday, 21 May 2014

In April 2014 the War Horse band lost their battle to be rehired into The Royal National Theatre stage production. As the saying goes however, the battle may be lost but the war is not yet over.

The five musicians lost their application for an interim injunction or specific performance against the Royal National Theatre, either of which would have meant that they were effectively reinstated. The application followed the issuing of a claim against the theatre company for breach of contract after it replaced them with recorded music.

Although the band will not get to perform with War Horse in the period running up to the main trial, Justice Ross Cranston said that that, “The claimants’ prospects at trial for breach of contract by the National Theatre are strong.”

Background to Ashworth and others v the Royal National Theatre [2014]

The claimants are five professional musicians who were contracted by The Royal National Theatre in 2009 to play their wind instruments during its London production of War Horse. The musicians accompanied various pieces of recorded music during the play. Elsewhere in the world the production used purely recorded music.

According to The Royal National Theatre, the initial London production was a huge success in its first few years but its profitability has gradually fallen since its earliest runs in 2007-2009. In light of cost considerations and the view of both the co-director of War Horse and the composer that it was better for accuracy and impact to deliver the score through recorded music, the theatre decided that no live band was necessary and that all the music could be recorded.

On 4 March 2014 The Royal National Theatre sent notice of termination to the claimants stating that their contracts would expire on 15 March 2014 on grounds of redundancy. The claimants sued the theatre company for breach of contract claiming that the theatre could only terminate their contracts if the production closed. They also sought an interim injunction or specific performance to force it to let them continue playing until the trial.

Refusal of the Interim Injunction or Specific Performance

Interim relief of the type sough requires three conditions to be met which the Court noted in its judgement. The court must be persuaded that the claimants have a real prospect of obtaining the relief sought at trial; that damages are not an adequate remedy in the interim period and that the ‘balance of convenience’ lies in the claimants’ favour.

In March 2014 significant changes were made to the production of War Horse, with nearly half the cast being replaced around the same time the musicians were removed. With that in mind, Justice Ross Cranston said in his judgment that the balance of convenience lay firmly against reintegrating the musicians into the production. In doing so he drew attention to the ‘loss of confidence’ inherent in such a situation and also to the interference that it would have with the artistic expression of The Royal National Theatre. 

For specialist Employment Law advice, please contact Aneil Balgobin via e-mail or by telephone on 0207 611 4848.

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