There was a long standing dispute concerning the occupation of agricultural land. In 1985 a notice to quit was served on the occupier and one of the occupants claimed a life tenancy. Negotiations continued until the occupant died in 2000. The occupant’s children claimed adverse possession. The court held that the occupation was with the implied permission of the owner and he was entitled to possession.
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S.8 of the CACA 1985 does not prohibit the court from granting an application solely because there had been no request from the judicial or administrative authorities of a contracting state in terms of art 15 of the Convention. A court should also not look at how a parent exercised custody rights only at whether they had such rights.
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Wrongful Removal Of Children:
Lord Ordinary refused original petition in which the petitioner sought a declarator that the removal of her children to America was wrongful within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction. The children were at the time living with the respondent (Father) in terms of a residential order. The primary basis of the refusal had regard to the fact that there was no written request from the American courts or administrative authorities seeking as ...
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Duty of Care: Foreseeability of Suicide: A widow was not entitled to claim damages from her late husband’s former employer where her husband had committed suicide during a depressive episode following an accident at work in which he had suffered personal injury. On the facts, it had not been reasonably foreseeable that the claimant’s husband would commit suicide and, as a matter of law, the reasonable foreseeability of the suicide had to be established both in respect of the duty of care and the ...
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Health & Safety At Work: It was held that the recorder had been wrong to find that an employer had negligently exposed an employee to harmful vibrations from hand-held vibration tools throughout the whole course of his employment. In fact, the exposure became negligent part-way through his service. However, where an employee did not develop symptoms of vibration white finger until some years after the date of negligence, he could properly argue that he should receive damages in full on the basis ...
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Application for Summary judgment / Strike out: The court dismissed the claimant's application for summary judgment or to strike out the defence because if the defendant's allegations were established at trial they would in fact provide a defence.
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Admissibility of Similar Fact Evidence: It was incorrect that similar fact evidence was only admissible in a civil case if it was likely to be reasonably conclusive of a primary issue in the proceedings or, alternatively, if it had enhanced relevance so as to have substantial probative value. The correct test was whether the evidence was potentially probative in the proceedings.
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No order as to costs where insufficient material to decide apportionment on the basis of the parties’ success on issues in dispute: Although costs ought to have been apportioned to reflect the appellant's success on a number of the allegations made in the respondent's defence and counterclaim, it had not been possible for the court to reach a view as to an appropriate amount to apportion since there was inadequate material upon which to form such a view. Accordingly, it was held that the appropr ...
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Negligence & Apportionment: Driver injuring child pedestrian: A driver, whose vehicle struck and injured a child pedestrian, had been negligent in not seeing the child on the kerb and/or crossing the road, and/or by not slowing down, and/or by not sounding his horn. However, on the facts, the child ought to have realised the need to look out carefully for traffic coming from his right on a busy road and his contributory negligence was assessed at 20%.
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Reasonableness of CFA success fee for detailed assessment: When called upon to assess the reasonableness of a success fee, the court must have regard to the facts and circumstances as they reasonably appeared to the solicitor at the time that the CFA was entered into, and not the facts and circumstances viewed with the benefit of hindsight. The court did not have the power under para.11.8(2) of the Costs Practice Direction to direct that a success fee in a CFA was recoverable at different rates ...
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