Musicians whose role in the West End production of ‘War Horse’ was superseded by recorded music had a ‘strong’ case that their employment contracts were breached – but nevertheless failed to convince the High Court that they should be reinstated.
The five musicians had played during performances of the phenomenally successful Royal National Theatre (RNT) show after its move to the New London Theatre. They were each paid between £1,200 and £1,500 a week and, amidst growing production costs and dwindling receipts, the decision was taken to replace them with a recorded soundtrack, in line with other productions of War Horse around the world.
Their employment contracts clearly stated that the RNT could only dispense with their services on giving notice that the production was to close and the Court found that the musicians therefore had a strong case that their contracts had been breached by the purported decision to make them redundant.
However, in refusing to grant the musicians an interim injunction or an order of specific performance, the Court found that the breakdown in trust and confidence between them and the RNT meant that ordering their reinstatement would be unworkable. The executive director of the RNT had expressed the view that, as well as being more cost effective, recorded music had a greater impact and that the production was ‘better’ without a live band.
Ruling that awards of damages would be ‘an adequate remedy’ if the musicians ultimately succeeded in their breach of contract claims, the Court also found that enforcing their return to the orchestra pit would amount to a disproportionate interference with the RNT’s rights of artistic freedom, enshrined in Article 10 of the European Convention on Human Rights.