A theatre-goer who said he had "not been informed adequately" that nudity, simulated masturbation and urination would be part of a dance performance has lost a case for breach of contract.
Judge Joe Mathews said, however, that though the plaintiff, Mr Raymond Whitehead, had not proved his case he was "proved to be a man of honesty, high principle and courage" in taking the case against the Irish International Dance Festival .
The case centred on a performance at the Project Arts Centre in May 2002 of Jerome Bel written by French choreographer Jerome Bel.
Mr Whitehead told the court he had run a gallery and nightclub in Temple Bar and now worked with antiques, interior design and acting. He was a full member of Equity.
The only information he had before seeing Jerome Bel was gleaned from the festival brochure. Referring to a picture of a man's hands clasped over genitals, Mr Whitehead said he thought it a picture of a "two hands in front of a hairy stomach".
He said he had been intrigued by the brochure's reference to "returning to the basic principles of dance". "I was curious to see how they interpreted the basic principles of dance" and had expected "something to do with dance". The brochure did not prepare him for what he saw.
The performance opened with three women and a man writing names and numbers on a blackboard. One woman put a lipstick in her mouth and began pulling at her skin, while another held a lightbulb - the only light in the theatre. One woman then leant over the man from behind him and he pulled her hair between his legs. "It proceeded like that in that vein for about 45 minutes." In the last 10 minutes the man and one of the women urinated on the stage, scooped the urine up and smeared it on the blackboard.
"At that point I got up and left. I was really disgusted by the experience." There was nothing in the performance he would describe as dance, which he defined as "people moving rhythmically, jumping up and down, usually to music but not always" and conveying some emotion.
He was refused a refund.
Ms Una Tighe, for the International Dance Festival, said it should have been clear to Mr Whitehead there would be nudity.
"I have no problem with nudity," he said, but the brochure should have stated "in plain English" that urination would have been involved.
"I'm objecting to people not being informed adequately about what they are going to see and the risks that they might be gravely upset whether because of their religion, their background, or they have been sexually abused."
Mr Patrick Kenny, lecturer in marketing in DIT, said in his opinion the brochure was in breach of the Advertising Standards Authority for Ireland code, but the code was not legally enforceable.
Judge Mathews stressed it was not an obscenity case. He said the case could "unfortunately" be judged only on "very narrow" criteria of contract law.
"Unquestionably Mr Whitehead has a stateable case but not a sustainable one. It does not mean Mr Whitehead may not indeed be right. He has made his case cogently and is proved to be a man of high principle and courage, in very ambiguous circumstances."
It could, however, not be said the International Dance Festival was in breach of contract or a duty of care to Mr Whitehead. He found in favour of the festival but did not make an order on costs in its favour. "I can, could and should order that there is no order on costs," he said.
