The film star Eva Green was excited to play the lead in a film called ‘A Patriot’, “a horror/thriller … set within a dystopian British port city”. Her role in the $10 million production offered her “the unusual opportunity to play a soldier …” She was “particularly attracted to the messages … around climate change and migration, about which she was passionate”. Ms Green was to earn $1 million from the role, in a pay-or-play arrangement, assuring her of the fee regardless of whether or not the film was made [the ‘Artist Agreement’].
Alas, ‘A Patriot’– intended to go into production in late 2019 – did not make it to the screen, and such drama as arose from its conception played out in the High Court instead, in the case of Eva Green v White Lantern Film (Britannica) Ltd and SMC Speciality Finance LLC [2023] EWHC 930 (Ch). The judgment (as they go) is itself an exciting narrative, with characters to fill the reader’s mind with thoughts of who could play the roles in the film of the book. Of one key protagonist, Mr Justice Michael Green said, “I can see how it might be possible to take an instant dislike to him.” Having succeeded in her claim, Ms Green may be tempted to play herself should such a movie be made.
As well as drawing attention to some of the less glamorous elements of filmmaking, Green v White Lantern Film also brings into focus the legal issue of renunciation. When Ms Green sued the Defendants for payment of the $1 million fee, which remained owing despite the stop date in the Artist Agreement having passed, the Defendants counterclaimed by alleging, amongst other causes of action, that Ms Green had renounced the Artist Agreement, and so no fee was due.
This ‘species of repudiatory breach‘ of contract, albeit much rarer, arises where one party to a contract indicates a desire not to perform their obligations either before or at the time performance is required. In order to make a renunciation, the Judge explained (at paragraph 207):
“The renouncing party must evince an intention not to perform or expressly declare that they are unable to perform their obligations under the contract in some essential respect. The question whether there has been a renunciation depends on what a reasonable person in the position of the innocent party would understand from their words or conduct and the surrounding circumstances. And any such renunciatory words or conduct must be clear and unequivocal.”
What amounts to a renunciation “is highly fact-sensitive and context-specific”. It must be accepted by the innocent party. In this regard, “No particular form of acceptance [of the renunciation] is required but it must clearly and unequivocally convey to the defaulting party that the innocent party is treating the contract as terminated” (paragraph 210).
The alleged renunciation over which Green v White Lantern Film was fought involved Ms Green claiming it was “impossible” that she would be able to make the film with a new producer – the instantly dislikeable man as found by the Judge to be – and, as such, the Defendants said she did not intend to honour the Artist Agreement. Ms Green made the alleged renunciation in late September 2019, four months after the Artist Agreement was entered in to. In the intervening period, the production became seriously destabilised by funding issues, which caused a change of the personnel in control of the film. Ms Green did not want to proceed with the new producers, whom she did not trust to make a high-quality movie – it appeared from the judgment with good reason.
As at late September 2019, pre-production on ‘A Patriot‘ had still not begun, as a result of which Ms Green had not yet been contractually required to commence performance of her obligations under the Artist Agreement. Nonetheless, despite all of the problems that had since arisen, she remained excited by the project. A deal was discussed whereby Ms Green would surrender her $1 million fee in return for the rights to the script, which would enable her to make the film with the original creative team. The deal did not come to fruition, however, and all of the conflict one would expect in Act 2 of a drama led in Act 3 not to a resolution, but to yet more drama.
In his judgment, Mr Justice Michael Green held that “… no one could sensibly have thought that [Ms Green] expressed a conclusive decision … not to perform her contractual obligations under the Artist Agreement. On the contrary, she wanted to make [A Patriot]” (paragraph 229). As such, he found that there was no renunciation, and made a declaration that Ms Green receive her $1 million fee in full, to which she was entitled under the pay-or-play arrangement aspect of the Artist Agreement.
It is rare for a relationship to fall apart before the contractual requirements upon each party commence. However, as can be seen from Green v White Lantern Film, such situations do arise, particularly if there is a longer period than anticipated between the execution of the agreement and the commencement of the contractual obligations. Parties who do not mean to renounce an agreement must ensure their actions are as clear and unequivocal as if they do mean to renounce. Indeed, there was a period in Green v White Lantern Film during which the parties pretended to progress the film, despite knowing the relationship had fallen apart, so as to avoid being in breach of the Artist Agreement. Needless to say, a party intending to renounce an agreement should take legal advice before doing so.
Ms Green has worked with Bernardo Bertolucci, Ridley Scott, Tim Burton – and of course James Bond. Fortunately, she did not need a licence to kill on this occasion. However, whether or not she found the High Court of England and Wales to be any less theatrical than the sound stages of Pinewood is a question upon which we can only speculate.
How we can help
Rosenblatt has a wealth of dispute resolution experience. For enquiries, please contact Dispute Resolution Legal Director Nick Leigh at nick.leigh@rosenblatt.co.uk.
Disclaimer: We at Rosenblatt (and our parent company RBG Holdings plc) support and encourage free/independent thinking in relation to issues which are sometimes considered to be controversial subject matters. However, the views and opinions of the authors do not necessarily reflect the opinions, views, practices and policies of either Rosenblatt or RBG Holdings plc.
