War Horse musicians refused specific performance

War Horse musicians refused specific performance

In a recent judgment, the High Court dismissed an application for an interim injunction or specific performance by professional musicians who had been employed to perform in the National Theatre’s production of War Horse at the New London Theatre.

The musicians sought an order requiring the National Theatre to continue to engage them in the live show until the trial of their claim.

The musicians’ contracts had been terminated following a decision by the National Theatre that a live band was no longer necessary and that all the music for the show would be pre-recorded.

The relevant test

The court applied the familiar American Cynamid test for interim relief, namely:

  • Was there a serious question to be tried with a real prospect that the claimants would obtain specific performance or a final injunction in the form of the interim relief sought?
  • If so, would damages be an adequate remedy for the claimants if the interim relief was not granted by the court?
  • If not, did the balance of convenience lie in favour of the court granting the relief sought?

Lexis®PSL Dispute Resolution customers can read more about the guiding principles for when the court will grant interim injunctions here.

Was the court prepared to grant the relief sought?


Although the court found that there was a serious issue to be tried regarding the National Theatre’s entitlement to terminate the contracts (and that the claimants’ prospects in that respect were thought to be strong), the court was not convinced that they had any prospects of success at trial in relation to the remedy sought.

Contrary to the claimants’ arguments, Cranston J found that this was a ‘standard case’ where loss of confidence was the primary obstacle to the claimants obtaining the relief sought:

 ‘The plain fact is that the production of a play necessarily entails close cooperation between all those involved, the actors and those directing and producing the play.’

Giving the decision a further, interesting dimension, the court also found that the right to artistic expression, as protected by article 10 of the European Convention on Human Rights, had a significant role to play in the application of the American Cynamid test.

Sections 12(1) and 12(4) of the Human Rights Act 1998 provide that in considering whether to grant any relief that may affect the right of freedom of expression in article 10, the court must have regard to the importance of that right. The court stated that it was clear from the Strasbourg jurisprudence that article 10 protects artistic expression.

Cranston J stated that the decisions of producers and artistic teams in staging plays are protected by article 10 and that the effect of the order sought by the claimants in this case would be to interfere with the National Theatre’s right of artistic freedom. In the court’s view, interference with that right was not necessary or proportionate to the protection of the rights of the claimant, which were adequately protected by a claim in damages.

Finally, the court also found that the balance of convenience lay in favour of not granting the relief sought as it would involve unwinding the production of War Horse without the band and forcing the creative team to work with musicians pending trial, despite not believing that they contribute positively to the play.

Although the court’s decision will be very disappointing to the claimants, and to those in favour of live accompaniment to the show, it was in line with authority and in accordance with the American Cynamid principles.

Citation: Ashworth & Ors v The Royal National Theatre [2014] EWHC 1176 (QB) Note that the full judgment is available for Lexis®Library subscribers here.

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About the author:

Barry specialises in international arbitration and commercial litigation. He trained and practised at Jones Day before joining Pinsent Masons. At LexisNexis, Barry is Head of Arbitration and Head of the Lexis®PSL Dispute Resolution Group.

In practice, Barry’s work included commercial, aviation and technology arbitrations pursuant to international arbitral rules, involving UK and international clients. He also has a background in general commercial, civil fraud and IT litigation, including experience before the High Court. While in private practice, Barry worked with a broad range of clients from the private and public sectors.

At LexisNexis, when not focused on the strategic development and operational requirements of the Dispute Resolution Group, Barry’s content work focuses on the law and practice of international commercial arbitration and investment treaty arbitration. In addition to his work for Lexis®PSL, Barry contributes to the LexisNexis Dispute Resolution Blog and New Law Journal on litigation and arbitration matters