Ashworth & Ors v The Royal National Theatre

For interim relief, the court applies the American Cyanamid principles. A serious issue on contractual entitlement does not establish a sufficient prospect of specific performance or an injunction requiring continued personal service. The court must assess confidence, workability, supervision and the likely consequences of granting relief on the particular facts.

Where the relief would materially interfere with artistic decisions protected by Article 10, the court must give particular regard to freedom of expression. Damages may be adequate for the interim period where loss can be quantified and the production can still be reconsidered at trial. The balance of convenience favours the course carrying the least risk of irremediable injustice.

Professional musicians engaged for the production of War Horse sought an interim injunction, or alternatively specific performance, requiring the National Theatre to continue engaging them until trial.

The musicians contended that their contracts permitted termination only in specified circumstances and that the National Theatre’s decision to replace live music with recorded music did not fall within those provisions. The National Theatre relied on the contractual terms and argued that specific performance or injunctive relief was inappropriate because the creative team had lost confidence in the musicians’ contribution and the production had been substantially reorganised.

The application required determination of the prospects of contractual success, the availability of final equitable relief, the adequacy of damages and the balance of convenience.

1. Contractual issue. The claimants had a serious issue to be tried and strong prospects on the question whether the National Theatre was contractually entitled to terminate their engagements. The contract, read with clause 9 of the 2010 SOLT/MU Agreement, specified the circumstances in which termination was permitted. It did not provide for termination merely because the creative team decided to dispense with the orchestra. Nor had the production closed.
2. Final relief. The prospects of obtaining specific performance or an analogous injunction were poor. Although supervision would not itself be an obstacle, the traditional restraint on enforcing personal-service arrangements remained relevant. The National Theatre’s producers and directors had lost confidence in the musicians’ contribution. The production had been rehearsed and altered without a live band, and reintegration would create practical difficulties. Those factors made the case unlike the unusual circumstances in Powell v Brent London Borough Council [1988] ICR 176.
3. Artistic expression. The court had to give particular regard to the right of freedom of expression under sections 12(1) and 12(4) of the Human Rights Act 2010, including artistic expression protected by Article 10. Requiring the National Theatre to reintegrate a live band would interfere with its artistic judgment. That interference was not necessary or proportionate because the claimants’ interests could be protected by damages.
4. Interim remedy. Damages were adequate for the interim period. The claimants’ losses could be quantified for an expedited trial, and the difficulty of reversing the production changes in two or three months was not materially greater than immediately. The balance of convenience therefore favoured refusal of relief, since granting it would disrupt the production and compel the creative team to work with musicians whom it did not believe contributed positively.
5. The application for interim relief was refused. The court nevertheless recorded that the contractual claim itself had strong prospects at trial.

First-instance application; no prior appellate decision is stated in the judgment.