19th August 2016

Patrons’ rights if the show goes on without its star

It’s Festival time in Edinburgh and the mainstream theatres are packed, with all the drama – so far – being confined to the stage.

Not so in London, where the hiring of major stars of film and television to take the leading roles in some West End productions has been compromised by an all-too-frequent incidence of big names being replaced by an understudy – most notably by Glenn Close in Sunset Boulevard and Sheridan Smith in Funny Girl.

As a result disappointed patrons have complained about spending a three-figure sum for a ticket, specifically because they wanted to see Glenn Close/Sheridan Smith on stage and felt short-changed because these were replaced by an understudy.

So in these circumstances where do patrons stand should they wish to seek recompense?

Basically as a patron I have a contract with the theatre, in terms of which I have paid for a seat and in return will see Glenn Close in Sunset Boulevard.  Just as the lights go down there’s an announcement that Miss Close will not appear and an understudy will be taking her part, as a result of which I walk out.

This would then give me the right to claim damages for a breach of contract, including the cost of the ticket, cost of travel to London, and hotel accommodation while there.  And if it then transpired that Glenn Close did not appear because the theatre never actually booked her on that date there’s little doubt that the theatre would be liable for those damages.

However had Glenn Close cancelled because of illness, say just an hour before the show, the theatre could oppose a damages claim on the grounds that the contract had been frustrated by an event which was not the fault of the management and beyond its control.  It would then have to refund my ticket price on the grounds of unjust enrichment, but would not have to pay anything else.

A long-forgotten, but still relevant, judgement on a similar theme stated: “A contract by an author to write a book, or by a painter to paint a picture is subject to the condition that, if the author became insane, or the painter paralysed, and so incapable of performing the contract, he would not be liable personally in damages.”

However what if, on hearing just as the lights go down that Glenn Close will not appear, I decide to remain in my seat and still claim my money back afterwards?

 Yes, I could still make a claim but the theatre might say in reply that I have had some benefit out of my ticket, so that it would not be fair to refund the full amount.

As to whether it’s worth going to court over, the familiar cost/benefit analysis would have to apply.  For a claim amounting to circa £150 I would normally tell a client to raise a Small Claim (shortly to be replaced by Simple Procedure) himself, and not worry about using a solicitor, as the costs will probably make it uneconomic.

Richard Godden
Partner – Dispute Resolution

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