Five musicians in the West End production of War Horse have failed to win a court order preventing the National Theatre replacing them with a pre-recorded soundtrack.
Neyire Ashworth, Andrew Callard, Jonathan Eddie, David Holt and Colin Rae were all made redundant from the show's New London Theatre run last month after the NT terminated their contracts.
They asked Mr Justice Cranston to grant them a temporary injunction preserving the status quo until the case can be tried.
The judge, sitting at London's High Court, said today that the musicians' prospects at trial for breach of contract were "strong" but he was not persuaded to make the interim order.
The NT, which also has productions of the multi award-winning show touring the UK and the US and another playing in Berlin, told the judge - who revealed he had never seen it - that the decision was made for artistic and financial reasons.
The move to recorded music first arose in late 2012 and the musicians' role was reduced after March 2013 to three or four minutes until stopping altogether on March 15.
Counsel James Laddie QC said: "The claimants have not accepted this breach of their contracts, and have elected to affirm their contracts. They have at all times made it clear that they remain willing and able to attend work and to perform their obligations under their contracts."
He added: " Even a small walk-on role is better than nothing. It is perhaps an indication of how tough the musical world is that they are happy with that - happy being part of an ensemble, being associated with War Horse and picking up regular wages week in, week out."
David Reade QC, for the NT, said it appeared to be the musicians' case that they were entitled to remain part of the play even where there was no role for them in it.
It was permitted to terminate their contracts where there was no longer a need for their services because there was no longer to be an orchestra as part of the production
As shown by the Lawrence Olivier and Tony awards it had received, War Horse was a play that had music - rather than a musical like Phantom Of The Opera.
"The orchestra was not an integral part of the play, and indeed there is no live band in any other production around the world."
If the order was granted, it would impact on those involved in the artistic and creative direction of the show which, as of March 17, was staged and lit without the presence of musicians.
Refusing to make an interim order for reinstatement, the judge said that the musicians' case was that they could easily be re-engaged as they were familiar with the arrangements and capable of adapting their performances to take account of any alterations in artistic direction.
I n theory, the NT could reduce their role under the contract to playing one note during the interval.
But, said the judge, the plain fact was that the production of a play necessarily entailed close cooperation between all those involved, the actors and those directing and producing the play.
Nick Starr, the NT's executive director, had said in evidence that the producers and directors did not believe that the musicians could contribute positively to the play and it was better off without them.
The judge said: "The National Theatre's artistic judgment, made by those with the expertise to assess such matters, is that a live band does not provide the same quality and impact of performance as can be produced through the use of recorded music and professional actors - Mr Starr is clear that this is not a matter of questioning the claimants' ability as musicians.
"There is a real risk, Mr Starr says, that in circumstances where they are imposed on the production by court order, and know that those running the play do not believe that they should be there, there could be a destabilising impact."
The judge said he was also doubtful that they could easily be reintegrated and would need only limited rehearsals, as the changes in the production had become embedded.
"Since March this year over one half of the cast are new and would have to be rehearsed, at some expense, to accommodate a live band. Although this will be a matter of evidence at trial, it seems to me that the order the claimants seek would entail compelling the National Theatre to make more significant changes to the play than this and that it would cause not insignificant practical difficulty."
If the musicians did succeed in winning a final injunction at trial, in two or three months time, damages would be an adequate remedy to cover the loss sustained between now and then.
"In my view the balance of convenience lies firmly against granting the interim relief sought. Refusal is the course which is likely to involve the least risk of injustice if it turns out to be wrongly made.
"The relief sought 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."
The National Theatre said later in a statement: "We welcome the High Court's decision to deny this order, and to support the NT and creative team in deciding the best way for the play to be produced.
"It is important to emphasise that War Horse has always been, and will continue to be, a play in which music plays an integral part, with a recorded orchestral under-score and central roles for folk musicians who perform live, as do the cast of 38 actors in the many folk songs and choral numbers.
"The vast majority of the orchestral music in the show has, from the start, been recorded - and wholly so in the case of the seven productions that have followed on from the London production, including on Broadway."
In his ruling, the judge said that War Horse, one of the most popular and critically acclaimed productions in the NT's history, had made a considerable profit in an age of declining public subsidy.
But it was an expensive play to stage with a cast - before March this year - of 36 actors and the five musicians and their deputies who covered in their absence - and its profitability had fallen when compared with the height of its success in the first two years of its West End run.
The musicians' contracts provided for a salary of between £1,200 and £1,500 per week, and the salaries of the musicians and their deputies represented more than a quarter of the £1 million which the NT paid musicians each year.