Ashworth and Others v The Royal National Theatre
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 15 April 2014 |
| Neutral Citation | [2014] EWHC 1176 (QB) |
| Docket Number | Case No: IHQ/14/0217 |
| Court | Queen's Bench Division |
| Date | 15 April 2014 |
[2014] EWHC 1176 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: IHQ/14/0217
James Laddie QC and Claire Darwin (instructed by Slater & Gordon) for the Claimants
David Reade QC and Jeremy Lewis (instructed by Harbottle & Lewis) for the Defendant
Hearing dates: 10 April 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claimants are professional musicians; the defendant, the National Theatre, needs no introduction. The claimants are supported by the Musicians' Union, formed over 120 years ago to improve the pay and working conditions of professional musicians, particularly those working in the theatre orchestras of the time. The claimants were engaged in March 2009 to play their instruments in the National Theatre's production of War Horse at the New London Theatre. Through this application they seek an interim injunction, or alternatively specific performance, to require the National Theatre to continue to engage them in the production of War Horse until the trial of their claim.
The test for interim relief is set out in American Cyanamid Co v Ethicon Ltd [1975] AC 396. In this case the issues are first, whether there is a serious question to be tried with a real prospect that the claimants will obtain specific performance or a final injunction in substantially the form of the interim relief sought; secondly whether, if there is, damages would be an adequate remedy for them for the interim period; and thirdly, if not, whether the balance of convenience lies in favour of the interim relief they seek. Determining where the balance of convenience lies requires consideration of a range of matters, including the prejudice to the claimants on the one hand if relief is not granted or to the National Theatre on the other if it is. The underlying principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other. While a mandatory order of the type sought here will often be more likely to cause irremediable prejudice than a negative order, what is required is an examination of what on the particular facts of this case are the likely consequences of granting or withholding relief: National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] UKPC 16; [2009] 1 W.L.R. 1405.
In addition the right to artistic expression protected by Article 10 of the European Convention on Human Rights has a significant role in the application of the American Cyanamid test, not only in considering the claimants' prospects at trial but also in deciding where the balance of convenience lies. This aspect of the case seems not to have been considered previously.
Background
War Horse opened at the Olivier Theatre in October 2007 and was revived for a second season in autumn 2008. As with other successful National Theatre productions it transferred to the West End. Since March 2009 it has played at the New London Theatre. It is one of the most popular and critically acclaimed productions in the history of the National Theatre. The upshot has been a considerable profit for the National Theatre in an age of declining public subsidy. However Nick Starr, the chief executive of the National Theatre, explains in his witness statement that the profitability of the play has fallen when compared with the height of its success in the first two years of its run at the New London Theatre. He states that War Horse is an expensive play to stage with its cast (prior to March 2014) of 36 actors and the five claimants and their deputies (who cover in their absence).
The composer of the musical score of War Horse, Adrian Sutton, describes it as an orchestral epic. In the absence of a full orchestra, that has meant recorded music. Between March 2009 and March 2013 the claimants played wind instruments to accompany the recorded music throughout the performance from the opening trumpet solo beginning the play to the military band accompanying the final song closing it. They did that in the main from the band room in the theatre with the music being conveyed electronically to the audience. The band also appeared on stage, in costume, for the so-called sequestering scene. During that scene they played for 2–3 minutes, on top of the recorded score. The song man, accordionist and bugler roles in the play have always been performed by actors, not musicians.
Productions of War Horse in other parts of the world have not involved a live band and have relied wholly on recorded music. In light of that, and because both the co-director of War Horse and the composer concluded that it was better for accuracy and impact to deliver the score through recorded music, the National Theatre took the decision to move to a production in London where no live band was necessary and all the music was recorded. There were financial benefits in this course as well. In early December 2012 the National Theatre informed the Musicians' Union that it proposed to terminate the claimants' contracts in March 2013 and move to recorded music. In mid-December that year the Union invoked the conciliation process under the collective agreement between the Society of London Theatres and itself ("the SOLT/MU Agreement"). The Conciliation Board met on 6 February 2013 and decided unanimously that the National Theatre would be in breach of the SOLT/MU Agreement if it terminated the claimants' contracts. From March 2013 the claimants' roles were reduced to playing in one short scene only lasting approximately 15 minutes although the understudy bugler played two additional cues each lasting somewhere around three minutes. All of what they had previously played was now recorded.
On 4 March 2014 the National Theatre sent the claimants letters giving notice of termination of their contracts to expire on 15 March 2014. In the letters the National Theatre stated that the grounds were redundancy. "The reason for your redundancy is that we wish to bring the London production into line with other productions of War Horse that now exist, and this is the wish both of NT management and the creative team". On 15 March 2014 the claimants affirmed their contracts. Subsequently they attended the New London Theatre to perform their usual obligations but were turned away. They remain willing and able to attend work and to perform their contracts. The National Theatre has confirmed that they will not take any point on affirmation of their contracts by the claimants not attending for work. Consequently they no longer do so.
In March 2014 there were significant changes in the production, not only with the removal of the musicians but because some fifty percent of the cast changed. These new cast members rehearsed the play over 7 weeks without musicians and have no experience of a production with live music. In his witness statement, Robin Hawkes, the director of artistic administration for the National Theatre, explains the changes and how the "tracks" – the defined paths for each member of the cast during the play — have altered. No band appears in the sequestering scene at present, and the direction and lighting has been changed to reflect that. The cast has increased to 38 so there is greater flexibility in accommodating the holidays and illnesses of the cast, which is especially important in a long running play like War Horse.
The claimants' contracts
The claimants have worked on War Horse in the New London Theatre under standard form National Theatre contracts based on that drawn up by the Society of London Theatres and the Musicians' Union for use by musicians engaged to perform in West End productions. The contracts are between the National Theatre as Manager and each musician. These they signed in March 2009. Clause 1 provides that the musician is engaged to play in the Manager's orchestra for the production of War Horse at a specified salary, now between £1200 and £1500 per week. (I note in passing that the salary of the claimants and that of their deputies represents more than a quarter of the £1 million the National Theatre pays musicians each year). Clause 2 of the contract reads:
"The engagement shall commence on the [23 rd] day of March 2009 and shall continue until either the Musician gives the Manager on any Saturday two weeks' notice in writing to terminate engagement, or, the Manager gives the Musician on any Saturday two weeks' notice in writing of the closure of the production, or otherwise as in accordance with clause 15."
The standard form contracts incorporate provisions of the SOLT/MU Agreement. The 2007 and 2010 versions of the SOLT/MU Agreement are identical in material respects. Clause 5.3 authorises the Manager to reduce the size of a band on a musical production being transferred to a smaller theatre. Clause 9 of the 2010 Agreement (equivalent to clause 15 of the 2007 Agreement) provides:
"9. DURATION OF A MUSICIAN'S ENGAGEMENT
9.1 Duration
The duration of a Musician's engagement shall be subject to the following:
9.1.1 The Musician giving the Manager on any Saturday 2 weeks' notice on writing to terminate the engagement.
9.1.2 The Manager giving the Musician on any Saturday notice in writing in accordance with 9.2 below of the closure of the production. A copy of such notice shall be sent to the Musician's Union.
9.1.3 The Manager giving the Musician on any Saturday no later than twenty six weeks after the official Press Night notice in writing in accordance with 9.2 below to terminate the engagement. Provided that in...
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