Injunction

Ashworth and others v Royal National Theatre: Queen’s Bench Division: 15 April 2014

Breach of contract – Claimant musicians being engaged by defendant – Defendant terminating claimants’ contracts on ground of redundancy – Claimants seeking interim injunction or specific performance requiring defendant to continue engaging them until trial 

In March 2009, the claimant professional musicians were engaged to play their instruments in the defendant Royal National Theatre’s production of War Horse. In March 2014, the defendant sent the claimants letters, giving notice of termination of their contracts on the ground of redundancy. The claimants sought an interim injunction or specific performance to require the defendant to continue to engage them in the production of War Horse until the trial of their claim.

They contended that the relief sought would be granted at trial, notwithstanding that the contracts had an element of personal service, as they could be easily reintegrated into the play and all they would need were limited rehearsals. The claimants further relied on section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 act), which provided that no court shall compel an employee to do any work by ordering specific performance or by restraining the breach of a contract by injunction.  

It fell to be determined: (i) whether there was a serious issue to be tried as to whether the defendant had been contractually entitled to terminate the claimants’ contracts; and (ii) whether the claimants had a real prospect of obtaining the relief sought at trial. Article 10 of the European Convention on Human Rights was considered.

The application would be dismissed.

(1) The plain words of the claimants’ contract had not covered what the defendant had purported to have done. Accordingly, there was a serious issue to be tried on the question of whether the defendant had been contractually entitled to terminate the claimants’ contracts on the grounds set out in its letters. Although an authoritative interpretation of the contract could only be given at trial, the claimants’ prospects on that aspect of the case were strong (see [11], [15] of the judgment).

American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 applied.

(2) The court was not persuaded that specific performance or a mandatory injunction would be granted at trial. The case was not exceptional; it was a standard case where, on a traditional analysis, loss of confidence was the primary block to the type of relief sought. As to workability, there was doubt about the claimants’ ability to be easily reintegrated into the play and that all they would need were limited rehearsals.

Further, there would be a clear interference with the defendant’s right of artistic freedom, under article 10 of the Convention, which would not be necessary or proportionate to the protection of the rights of the claimants, under article 10(2) of the Convention, which would be adequately protected by a claim in damages. That would be a key factor telling against the exercise of the court’s discretion at trial to grant equitable relief in the form of specific performance or injunctive relief.

Furthermore, the 1992 act had no application in the context of the instant case. Section 236 of the act actually favoured the defendant, since the effect of the order sought would be to compel its employees to work with the claimants against their will (see [23], [26], [27], [29] of the judgment).

Chappell v Times Newspapers Ltd [1975] 2 All ER 233 applied; Powell v Brent London Borough Council [1988] ICR 176 distinguished; Geys v Societe Generale, London Branch [2013] 1 All ER 1061 distinguished.

James Laddie QC and Claire Darwin (instructed by Slater & Gordon (UK) LLP) for the claimants; David Reade QC and Jeremy Lewis (instructed by Harbottle & Lewis LLP) for the defendant.