Courts will only grant interim injunctions in certain circumstances. In Ashworth and ors v The Royal National Theatre the High Court refused to grant an order for specific performance or an injunction to stop the theatre from breaching the musicians’ contracts, as it was highly unlikely that a court would grant them the ultimate remedy they sought which was to be re-engaged.

Basic facts

The National Theatre’s production of War Horse opened at the Olivier Theatre in October 2007 and transferred to the West End in March 2009. Between March 2009 and March 2013, the theatre used a live band in addition to recorded music.

In early December 2012 the National Theatre informed the Musicians' Union that it intended to terminate the contracts of the orchestra members with effect from March 2013 and move to recorded music completely. However, after the theatre was told that it would be in breach of a collective agreement with the union if it terminated the contracts, it reduced their roles dramatically. Then, on 4 March 2014 the theatre sent letters to the orchestra members giving notice of termination of contract on 15 March 2014 on the ground of redundancy.

Test for interim relief

The test for interim relief in this case was whether there was a serious question to be tried with a real prospect that the musicians would obtain specific performance or a final injunction similar to the one they wanted now. If there was, the next question was whether damages would be an adequate remedy for them in the interim period and finally, if not, whether the balance of convenience lay in granting them the relief they sought.

Claims of musicians and the theatre

Given that the musicians’ contracts stated that they could only be terminated if the production closed, the musicians issued claims for breach of contract. However, they asked the court to grant them interim relief - either an order for specific performance requiring the theatre to allow them to keep playing or an injunction to stop it from breaching their contracts - until the full case was heard.

The theatre argued that it had an implicit right to terminate the contracts as it no longer needed an orchestra and the orchestra members could only discharge their obligations under the contract by doing what they had been hired to do - play in an orchestra.

High Court decision

Although the High Court judge accepted that there was a serious issue to be tried on the question of whether the theatre was contractually entitled to terminate the claimants’ contracts, he did not grant the orders the musicians sought.

This was because, in order to grant the order for interim relief, they also had to show that damages would not be an adequate remedy in the interim period and that, on balance, they would be more prejudiced than the theatre. In this case, damages was an adequate remedy because to order re-engagement would involve reworking the production of War Horse to include the orchestra members and force the creative team to work with them pending trial.

The judge did not think it was very likely that a court would order the theatre to let them continue playing, not least because it had clearly decided the play was better without live music. Granting the order would therefore interfere with the theatre’s artistic judgment that it preferred recorded music, which was also protected under article 10 of the European Convention on Human Rights.

In any event it was not necessary or proportionate to protect the claimants’ rights under article 10(2) since they could continue to play their instruments, albeit not in War Horse.