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Freedom of Expression found to be an important consideration for the court in determining whether to grant specific performance or a mandatory injunction in an employment claim

16 April 2014

The National Theatre, represented by Harbottle & Lewis, has been successful in defending an interim injunction of specific performance brought by five former War Horse musicians.

The claimant musicians were made redundant by The National Theatre in March 2014 following a creative change to the London War Horse production, removing live music from the show and replacing it with recorded music. This change, introduced by producers and directors, sought to bring the London production in line with the creative format of all other War Horse productions across the globe. 

The musicians claimed that the National Theatre had terminated their employment contracts in breach and applied to the court for an interim order that they, and their live music, should be re-instated into the production to maintain the status quo until their claim for breach of contract could be heard.

In considering whether to order that the National Theatre re-engage the musicians, the judge came to the following conclusions: 

  • While there was no doubt that the National Theatre retained trust and confidence in the musicians’ musical abilities, there had nevertheless been a loss of confidence on the part of the producers and directors who no longer believed that live music could positively contribute to the War Horse production. Such loss of confidence would make it unlikely that the musicians would succeed in obtaining specific performance for re-engagement at a final hearing.
  • Re-engagement of the musicians would not, from a workability perspective, be as straightforward as simply re-inserting the musicians on stage. This was an important consideration in determining where the balance of convenience lies as it would require compelling the National Theatre to make significant changes to the current format of the production which would cause significant practical difficulties.
  • Regard must be given to the impact a re-engagement order might have on the National Theatre’s right of freedom of expression under Article 10 of the European Convention of Human Rights, in considering where the balance of convenience lies. The judge drew attention to section 12(4) of the Human Rights Act 2010 which requires the court to pay particular regard to freedom of expression when considering whether to grant an order such as the one sought by the musicians. The judge noted that “The decisions of producers and artistic teams in staging plays are protected by Article 10. Here the effect of the order sought would be to interfere with the National Theatre’s right of artistic freedom.” The musician’s Article 10 right to freedom of artistic expression were not engaged as they were still able to play their instruments albeit not in the War Horse production.
  • Damages were an adequate remedy for the musicians.

The decision reaffirms the established employment law principle that an employer should not be compelled to provide work. Interestingly, in his judgement the judge commented that the Article 10 right to freedom of expression had a significant role in deciding where the balance of convenience lies.  


Further information

A full report of the hearing is available here.



For any further information on the employment issues discussed above please contact Howard Hymanson or Marian Derham, or for more information about our services for the theatre industry please contact Neil Adleman.

Please follow the links for further information on our Employment services for Businesses and Individuals, or for further information on our Theatre practice.

16 April 2014

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