Introduction This Practice Note provides a negotiation guide for services agreements. It sets out key positions across 25 of the most commonly negotiated issues, and suggests potential compromises and key considerations depending on the scope of the contract, the relative bargaining strengths of the parties, and whether the reader is acting for the customer or supplier. It is intended as a high-level discussion of the issues, prompting the reader to consider what may be needed in the circumstances of any particular deal. Where relevant, specific Practice Notes are also referred to for further information. It is only relevant for business to business transactions. It does not discuss the issues in the context of IT services contracts, although many of the points raised are of similar application. Instead, see Practice Note: Negotiation guide—IT contracts. This Practice Note makes reference to example balanced drafting within Precedent: Services agreement (ongoing supply)—balanced for some of the topics discussed, as well as individual balanced clauses where available. For a quick reference point on the customer’s and supplier’s best positions and an example balanced

Aims of the parties The aims of the parties will differ depending on the precise nature of the contract, the dispute, and the parties’ commercial goals. They may include: • obtaining or avoiding performance of the contract • securing the refund or retention of any deposit paid • preserving the legal priority of any interest in the property (and conversely removing the interests of other parties) • recovering losses, interest and costs • minimising any damages payments • maintaining the parties’ business relationship • obtaining a release from future claims • minimising legal and management costs Background issues In considering settlement, the lawyers acting for each party should bear the following in mind: • the surrounding commercial pressures, such as prospects of redevelopment, the parties’ financial positions, the availability of planning permissions (if needed), current market value and likely future movement, the tax treatment of the property, and the client’s wider portfolio strategy • the need to observe key deadlines while negotiations are under way, for example limitation periods, contractual long-stop dates, or deadlines for notices

This Negotiation Guide forms part of the: Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. A short term lease of commercial premises will generally be granted for a period ranging from several months up to and including a term of (typically) not more than three years. In some instances, the landlord may prefer to grant a formal lease rather than a licence so as to avoid any suggestion that the tenant benefits from security of tenure under Part II of the Landlord and Tenant Act 1954 (LTA 1954), given that: • where the term is for a period of six months or less, the tenancy is automatically excluded from protection (see LTA 1954, s 43(3)) • in the case of a longer term, the landlord can make sure that the parties adopt the contracting-out procedure that is sanctioned under LTA 1954, s 38A For further guidance, see Practice Notes: Leases and licences of land—key features and differences, How to enter into short-term lettings and licences of commercial premises

A trade mark coexistence agreement is a contractual arrangement between the proprietors of separate trade marks that are similar or identical and which might otherwise give rise to a likelihood of confusion. In broad terms, parties to a coexistence agreement will usually agree to limit their use and/or registration of the marks to a particular territory and in connection with specific classes of goods and services only. They might also agree to restrictions on the form and manner of use. The purpose of the agreement is to reduce or eliminate the risk of confusion; settle existing disputes (eg oppositions, invalidity or infringement proceedings); and/or avoid future disputes. In essence, the parties agree the terms upon which their respective trade marks may ‘peacefully coexist’, without either party asserting infringement against the other, provided the agreed parameters are respected. For more information, see Practice Note: Trade mark coexistence agreements and Trade mark coexistence agreement—checklist. For an example coexistence agreement, see Precedent: Trade mark coexistence agreement. Aims of the parties It may be the case that the aims of the

Key points What are you negotiating about and what is on the table? [Make sure you have a very clear understanding of the subject matter of the negotiation. Are any items specifically excluded from the negotiation? Should they be?] What are your objectives? [Think about what you want to achieve from this negotiation] What are your priorities? [Think about what you must achieve, what you would like to achieve and what is a nice to have] With whom will you be negotiating? [Think about what you know about them and what you need to know] Where will you start? [What is your opening position and what is theirs likely to be?] Balance of power Size [Is the size of either party relevant, eg can you trade volume purchases for better pricing?] Current market [Do current market conditions affect you? If yes, could those conditions change soon?] Knowledge [What do you know about

Negotiation tactics—a guide for staff Other party’s behaviour Example How to counter Controlling the agenda Refusing to let other people have a say. Dominating proceedings Refer back to the agenda and agreed timeframesAsk questions directed at others to draw in their viewsAgree a time slot for each person to put their case uninterrupted Behaving aggressively Shouting, swearing, finger pointing Suggest a break to allow tempers to coolHighlight the inappropriate behaviour,

Damage and disruption caused by building works are usually the subject of a claim in trespass, nuisance or negligence. This Practice Note briefly explains the prospect of an alternative or additional claim under the Protection from Harassment Act 1997 (PHA 1997). Jones v Ruth illustrates these various claims including the possibility of making a statutory claim for harassment, where those carrying out the works are aggressive and act in an unco-operative way in response to any complaints. The case concerned a dispute between neighbours over building works that overran by four years. The works, carried out by Mr and Mrs Ruth, caused damage to the adjoining property, noise and pollution, and prevented their neighbours from enjoying the use of their garden. Mr and Mrs Ruth had also displayed an aggressive and

Local authorities (LAs) are able to deal with complaints in relation to high hedges under Part 8 of the Anti-Social Behaviour Act 2003 (ABA 2003). This Practice Note covers the definition of a high hedge, who can complain and the procedure they must follow, remedial notices, failure to comply with a notice and appeals. High hedges ABA 2003, Pt 8 empowers LAs to deal with complaints in respect of high hedges. Who can complain? A complaint can be made by: • an owner or occupier of a domestic property who alleges that their reasonable enjoyment of the property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person • an owner of a currently unoccupied domestic property who alleges that the reasonable enjoyment of that property by a prospective occupier of that property would be adversely affected by the height of a high hedge situated on land owned or occupied by another person The hedge The hedge in question must: • consist wholly or predominantly of a line

Noise is a category of statutory nuisance. This may arise under the Noise and Statutory Nuisance Act 1993, the Noise Act 1996 (NA 1996) or the Environmental Protection Act 1990 (EPA 1990). This Practice Notice covers domestic noise, commercial noise, night-time noise, anti-social behaviour, statutory nuisance, noise created by building works that are within the terms of a planning permission, what action to take if there is a complaint, action that the local authority or a landlord can take and civil proceedings for statutory nuisance and private nuisance and remedies for noise nuisance including injunctive relief. Noise is one of the categories of statutory nuisance. Noise nuisance covered by statute includes: • noise in the street from vehicles, equipment, machinery or loud-speakers, and faulty burglar alarms • night-time noise from private dwellings, and • noise pollution The statutory regimes allow local authorities (LAs) to act for complainants, or for complainants to act directly, without involving the local authority. For more information on nuisance generally, see Practice Notes: Private nuisance—general principles and Nuisance—what are public

The neighbourhood development order (NDO) regime is contained in the Town and Country Planning Act 1990 (TCPA 1990), specifically TCPA 1990, ss 61E–61Q and Sch 4B. See Practice Note: Introduction to neighbourhood planning for a general introduction to neighbourhood planning. An NDO is a form of deemed local planning permission; it grants outline or full planning permission in a particular neighbourhood area for the development specified in the order, which may be either a particular project or a particular class of development. As a result, a separate planning permission will not be required from the local planning authority (LPA). This is designed to speed up the planning process. However, an NDO cannot grant permission for development where planning permission has already been granted for that development. The contents of an NDO will depend on the needs of the particular neighbourhood area and the terms of any neighbourhood plan. The LPA can provide advice and assistance (but not financial assistance) to the parish council or neighbourhood forum in formulating the NDO. An NDO cannot relate to excluded development,

Context The Localism Act 2011 introduced the concept of neighbourhood planning, which allows communities to shape the development and growth of a local area. As part of the neighbourhood planning process, an independent examination and referendum are required for the completion of: • neighbourhood development plans (NDPs), which allow communities to set out planning policies for the development and use of land in the neighbourhood. NDPs form part of the statutory development plan • neighbourhood development orders (NDOs), which grant planning permission in the area, without the need for planning applications • community right to build orders, a type of NDO, which allow certain community organisations to bring forward smaller-scale development on a specific site, without the need for planning permission The Neighbourhood Planning (General) Regulations 2012 (2012 Regulations), SI 2012/637 and Schedule 4B to the Town and Country Planning Act 1990 (TCPA 1990) set out the procedure for the independent examination and referendum for NDPs and NDOs. See Practice Notes: Introduction to neighbourhood planning and Preparing a neighbourhood development plan. Independent examination The

Planning analysis: Neighbourhood planning may now be well-established, but how much is it compromised by the swing back to centralist planning policies, asks Peter Edwards, planning solicitor at LexisNexis.