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This case illustrates that courts will not order specific
performance of a contract of employment other than in exceptional
The National Theatre used a combination of live music and
recorded music in its staging of War Horse in London. Elsewhere in the world, it had used
only recorded music. The live music was actually played in a separate room but
relayed into the auditorium. The score required a full orchestra so most of it
was recorded with a few instruments playing live to accompany the recorded
The National Theatre decided it would improve the performance if all the
music was recorded. It terminated the contracts of the musicians. The musicians’ contracts permitted termination only in limited
circumstances, which did not include redundancy. The musicians therefore
regarded the termination of their contracts as a breach of contract which they
did not accept. So they turned up for work as normal but were turned away. They
then applied to the court for an order for specific performance of the contract
– ie an order that the National Theatre continue to employ them.
The court agreed that the
termination was a breach of contract. However, orders for specific performance
are not granted for contracts requiring personal service where trust and
confidence has broken down or where a continued relationship is unworkable or
constant supervision by the court might be required. Here there was a loss of
confidence because, in the theatre’s artistic judgment, a live band did not
provide the same quality and impact of performance as recorded music. There was
a risk, if a court of imposed the musicians on the theatre, that the musicians
would know that the theatre did not believe they should be there. It would also
not have been workable because the play had been rehearsed without a live band.
An order for specific performance would also affect the right of the theatre to
artistic expression as guaranteed by Article 10 of the European Convention on
Human Rights. The order for specific performance was therefore refused.