NEGOTIATION AND CASE ANALYSIS ASSESSMENT

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Section A: Case Analysis

I am acting on behalf of my client, Anaya Dhillon, in an attempt to lead a negotiation with Sawyer Distribution Limited (SDL). My client wishes to get compensation for private disturbance and the losses resulting from SDL’s operations and activities at the distribution and storage site. Anaya’s property is based at London’s N22 3LS Elm Park Crescent (EPC). EPC is a small road with 5 separate houses, situated just off of Elm Park Road. The Property is a 3 bedroom detached house with a garden. The Property was built around one and a half decades ago being integral to a small residential development. On top of compensation, Anaya is equally seeking to ask SDL to revert to utilizing the upper yard in doing their deliveries in addition to implementing noise control procedures especially as regards delivery trucks and fork-lift trucks. On top of that, she also seeks compensation for the damage that she has suffered and the loss of value of the Property. As her counsel, I have taken the initiative to furnish SDL with a letter of claim notifying the company of my client’s complaints and setting out the claim for private nuisance. This letter asks SDL to cease conducting activities resulting in the nuisance, and also sets out Anaya’s claim for harms to compensate her for income and Property value loss. The issues to be addressed and negotiated are nuisance, commercial and compensation concerns.

1. Scope of compensation: it is imperative that both parties come into an agreement on the scope of compensation.

Strengths: Anaya has the upper hand in this matter since she is the one seeking compensation for the inconveniences caused. She may seek to get compensation for private nuisance or compel SDL to cease taking part in activities that result in nuisance. Being compensated would give her a boost in acquiring a new place easily. Besides, considering the fact that SDL is in financial crises, there are high chances that they might agree to an amicable resolution in that this would be cheaper to them than litigation.

Weaknesses: among the weaknesses associated with this amicable resolution of this issue is that SDL might not be willing to settle for an amicable solution owing to the fact that it is a business entity against a single person in the neighbourhood, this puts Anaya at a disadvantage and thus being forced to pursue litigation.

Evidence: existing cases on compensations for private disturbance, the law on private disturbance¹

2. Physical disturbance: the issue arose three months ago when SDL commenced using the access path to the lower yard (the backyard of the site). The path has since become the major route followed by the company’s trucks while delivering or collecting materials and goods. The turning by such heavy vehicles has since become a major disturbance of personal piece for my client.

Strength: local authorities and neighbours are also victims and witnesses to the disturbances caused by SDL. Other car users using the Elm Park Road are facing the same plight and there is a good chance that SDL will find a better solution should this issue be addressed by other individuals.

Weaknesses: some of the neighbours have been employed by the company or at least have relatives working for the company, and this makes it difficult to have one voice on this issue as they are benefitting in one way or another.

Evidence: law- as a common law tort, Nuisance is categorized into private and public nuisance. The current case is under private nuisance and SDL ought to be treated as such since the company has interfered with Anaya’s enjoyment of her land. Several existing cases can be quoted here such as in “Hunter v Canary Wharf,”² where the court mentioned of three forms of private nuisances.

3. Site configuration: change of site configuration by SDL, in addition to changing its location of various operations conducted at the site.

Strength: these changes have violated the initial arrangement when Anaya made her purchase, thus she stands a better chance to present a better case against SDL. The company’s major storage warehouse have been shifted to the upper yard, leaving the lower yard for the fork-lift trucks used in transporting materials from the storage region to delivery lorries. This is a perfect upper hand for Anaya to make a concrete case against SDL should they decline her choice of amicable resolution. Besides, the forklift trucks plus the delivery trucks have been fitted with fairy audible reverse gear alarms. This is a key opportunity to make a strong case against SDL in case they decline her choice of amicable resolution.

Weakness: the major weakness here is that should SDL continue to stick to the new change of site configuration and the location of various operations conducted at the site, then Anaya will continue to suffer from the disturbance of the vehicle commotions and alarms in addition to losing her clients and eventually she might run out of business. Should she consider litigation, this would put her at odds with her neighbours especially those employed by the company.

Evidence: Factual evidence concerning the likelihood of the local authority being aware of SDL’s change of site configuration and becoming a hindrance to efficient movement of traffic in and out of the Elm Park Crescent and adjacent paths. Specifically, the local traffic officers are aware of this issue and add to the factual evidence. Besides, the there is a law necessitating duty of care among neighbours. Therefore, SDL violates “duty of care” which is the responsibility of one person to another. This responsibility was laid out in Donoghue v. Stevenson (1932).

4. Bother from animal sound: while the present disturbances being faced by Anaya occur during daytime working hours, the evening guard dogs also contribute to unpleasant evenings sometimes while patrolling the lower yard area. The dogs too are a source of noise through excessive barking during the nights.

Strengths: yet again, Anaya has the upper hand in this since a case can be made under private nuisance because this too is under tort law nuisance³. Besides, other neighbours too have been complaining a lot about this disturbance from barking dogs during the nights. I believe Anaya stands a chance to have the company do something about this issue because it is a violation of her right to a peaceful sleeping environment. I expect this to be a major advantage while attempting to resolve the dispute amicably during the settlement meeting.

Weakness: During the anticipated settlement meeting, the company representatives might decline Anaya’s requests on the basis that these guard dogs provide security not only to the property but the entire neighbourhood.

Evidence: The current case is under private nuisance and SDL ought to be treated as such since the company has interfered with Anaya’s enjoyment of her land. Various statutes can be quoted here such as the “Environmental Protection Act of 1990”. According to “Section 79(1) of the Environmental Protection Act 1990,” there are a total of nine categories of statutory nuisance established, and they include “the state of premises, smoke emissions, fumes or gases from dwellings, effluvia from industrial trade or business premises, accumulations or deposits, animals, noise from premises, noise from vehicles or equipment in a street and other matters declared by other Acts to be statutory nuisances.”⁴ Dumping of waste is captured under Section 33.

5. Therapy business at risk: Anaya’s physiotherapy business is at risk of closure since she uses one of her rooms at the property for the business. Since COVID-19 pandemic hit the entire world approximately one and half years ago, her services have been on a higher demand considering it is within the healthcare setting and people need being healthy as much as possible to overcome this pandemic. However, the events of SDL have significantly affected her business negatively since most of her clients have been vanishing without citing any reasons, but Anaya is certain that the unfavourable environment created by SDL has been the reason.

Strengths: this gives us an upper hand in negotiating for Anaya’s claims with SDL taking into consideration that her job is at risk simply because of the company’s business operations. The expectations are very high that the representatives of SDL Company will definitely give in to or at least consider Anaya’s claims since once she pursues a lawsuit things would turn nasty for the company.

Weaknesses: if the company is unable to meet Anaya’s demands, it means that her business will continue to deteriorate and this might subject her into a financial crisis. Since the onset of this issue, her income has been able to cut by almost half, reducing from £400 on weekly basis to approximately £250 on weekly basis. If this is not resolved soonest possible, Anaya stands a chance of losing her business especially during the current COVID-19 pandemic where her business is expected to peak considering the high demand for such services. Besides, if this is not solved, relocating to another place would still cost her a lot, thus she needs being compensated by the organization for this inconvenience; else she might lose a lot of clients.

Evidence: pursuant to the “Environmental Protection Act of 1990,”Anaya has the right to enjoy serenity at her premises but this has been deprived of her by SDL Company. Several cases can be made reference to, including that of “UK Parliament, Hunter and Others v. Canary Wharf Ltd”⁵ and this ought to be mentioned in the negotiation meeting⁶.

6: Sale of property: Among the options that Anaya has includes selling her property. Anaya wishes to sell her property but unfortunately the selling price has been significantly affected by the nuisance resulting from SDL’s activities; inclusive of noise and lack of a tranquil environment.

Strengths: definitely SDL representatives will take into consideration Anaya’s claims considering the fact that the business activities have caused depreciation in her property value would give them better grounds for litigation. This gives Anaya the upper hand in negotiating for the possibility of SDL to revert to utilizing the upper yard in doing their deliveries in addition to implementing noise control procedures especially as regards delivery trucks and fork-lift trucks

Weaknesses: the major weakness here is that SDL representatives might still hold that Anaya was in full knowledge of the existence of the company and their business activities could be changed to suit their interests, including using either yard. This might be problematic in negotiating for the likelihood to revert back to using the upper yard.

Evidence: in pursuance of the “Environmental Protection Act of 1990,” Anaya is entitled to enjoy living comfortably at her premises or selling at her own leisure without being affected by the activities of SDL Company⁷.

Factors to boost Anaya’s power and leverage towards compensation claims

• Anaya seeks to save her business from collapse and continue making enough profits without being affected by the activities of SDL

• Anaya is protected by the “Environmental Protection Act of 1990” and this gives her the upper hand during both the settlement meeting and in case of a future litigation

• Anaya is highly backed up by the local neighbours who have had constant complaints over the same issue

• The existing legal cases of this nature favours Anaya

Factors to boost SDL’s power and leverage against compensation claims

• SDL company has had a great reputation in the neighbourhood especially on matters employment

• SDL company has been a huge source of security in the neighbourhood

• SDL company has been in existence prior property acquisition by Anaya

• SDL is not a liable nuisance

Section B: Negotiation Strategy

Logistics

During the negotiations, Peter Wilson will represent SDL Company, Sally Nugent (solicitor at LLP) as SDL’s attorney and Anaya Dhillon as my client, and finally personally representing Anaya. I am a solicitor at Price Prior. Wilson and Sally hail from Leeds, and Anaya comes from North London while I come from Central London. While the present legal issues are not quite complex, there are certain inter-related property and commercial issues and this will involve significant transaction value. This makes it reasonable to have the settlement meeting done physically rather than virtually despite the limitation of Covid-19 countermeasures. The involved legal concerns are not quite intricate but given the nature of Anaya’s claims of business almost collapsing this becomes a serious matter. The exchange of introductory information will be done via email or phone prior the meeting in order to avoid much travelling especially in light of COVID-19 pandemic and for the purposes of saving cost and time. All meeting participants have been notified to be present in reading during the first two weeks of June, 2021. The anticipated meeting ought to be scheduled within this timeframe. The meeting will be held at a neutral ground where participants from both parties are comfortable with. Wilson might have a preference for the SDL site offices but for the purposes of tranquillity and a serene environment this is not a likely choice. It is important that a neutral venue is settled for physical meeting. Scheduling the meeting during the first two weeks of June is sufficient time to ensure each party is prepared for the same. There are no cultural differences anticipated during the meeting as all the participants are conversant with the English culture. Anaya’s central objectives are to simply see to it that she is able to conduct her business without much distraction from the business activities of SDL Company. Anaya further seeks to ensure that her clients too should not be inconvenienced in either way by the company’s business activities.

The objectives, positions and interests in the proposed negotiations

The primary objective of Anaya includes the need to ensure that she is able to conduct her business without much distraction from the business activities of SDL Company. The other objective is to ensure that her clients too should not be inconvenienced in either way by the company’s business activities, and all these are provided for by law⁸.

Alternatives to negotiated agreement

a) Anaya

• Consider the possibility of leasing a cheaper place to carry out her therapy work

• Consider selling the property to someone who will be less affected by SDL’s activities

• Engage discussions with other relevant bodies like DEFRA and Environmental Protection UK

b) SDL

• Maintain a good relationship with the neighbors

• Conform to the environmental protection rules to avoid future problems

Concessions and opening position

The proposed negotiation is more of a granular concession considering the fact that the issues being discussed are intertwined thus complicating the need to have these points negotiated as individual points. As the legal counsel representing my client, my opinions are that SDL ought to concede to: a) compensating my client for the harm caused by the activities of SDL business for the losses made in accumulative form; b) install low-noise alarms on all of their trucks and fork-lifters; c) delivery trucks and heavy goods vehicles driving along Elm Park Road to quit using the same road during their business activities. Besides that, it would be important consenting on an agenda beforehand the negotiation meeting for the purposes of being up to speed with all matters to be addressed during the meeting. Doing so will ensure the meeting is carried out smoothly.

Planning negotiation process

Prior having the proposed meeting with SDL representatives, I would make certain that I have fully acquainted myself with the level of concession I expect from them. Besides, I would ensure that I have fully briefed my clients on how to respond in case the other party asks her questions regarding her property, and in case she found the question inappropriate to refer it to me. This would be more of teamwork and where there is teamwork victory is imminent. The good thing is that we have already decided that I would do the larger part in the negotiation process and that my client would only come in only when it is important to do so. Besides, I will have to acquaint my partner and client with the necessary information on the best approaches to negotiation and how to divide roles where need be. Once the negotiations are over, both parties will become signatory to a heads of terms highlighting the agreement terms. Besides, it would be wise using these heads of terms in generating and consenting to the contractual documentation⁹.

Section C: Approach to the negotiation – Style and Techniques

It would be of utmost significance to ensure that a good relationship is eventually maintained between SDL and Anaya for the long-term relationship purposes. Whether or not SDL consents to the compensation, it is imperative that both parties have a positive relationship as neighbours in the same locality. While this consensus is not mutually beneficial, it is important SDL understands the need to ensure the nearby residents live peacefully and in a tranquil environment. It is imperative that SDL understand that private nuisance is a crime of a high gravity in that it interferes with my client’s use and enjoyment of her personal land, as well as other victims who are yet to raise the issue. It is important that SDL understands that we could have resulted to settle this issue in court but we decided to liaise amicably for a possible compensation of the loss incurred by my client. In such a case, the law requires that the perpetrator offsets the incurred harm or losses and to ensure that the nuisance is discontinued accordingly¹⁰. Just as stated in the case of “Lord Lloyd in Hunter v Canary Wharf” [1997], it was concluded by the jury that there are three forms of private nuisances: (a) “nuisance by direct physical injury to a neighbour’s land”; (b) “nuisance by encroachment on a neighbour’s land”; and (c) “nuisance by interference with a neighbour’s quiet enjoyment of his land.” It is thus evident that SDL has violated all three accounts against my client, and it is the obligation of the company to meet the demands of my clients.

Word Count= 3020 words (excluding Footnotes and Bibliography)

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Bibliography

(House of Lords – Regina v. Rimmington (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) and Regina v. Goldstein (Appellant) (On Appeal from the Court of Appeal (Criminal Division))November 13, 2006) <https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd051027/gold-2.htm> accessed May 9, 2021

Lord Lloyd in Hunter v Canary Wharf” [1997]

Reader’s Digest Association, Reader’s Digest Family Legal Guide (1981)

RTS Flexible Systems Ltd v Molkerei Alois Müller Gmbh & Company KG (UK Productions) [2010] All ER 3.

Treitel G, The Law of Contract (Sweet & Maxwell 2003).