Episodes

  • E78 The Fifth Court

    DSBA Legal Podcast of the Year


    With thanks to Clio Legal Software.


    Bloomsday is a celebration of James Joyce's Ulysses, taking place annually on June 16th. The date commemorates the events of the novel, which are set on June 16, 1904. This day is significant because it marks Joyce's first outing with his future wife, Nora Barnacle.


    The publication of Ulysses itself became a landmark legal case in literary history. The novel was banned for obscenity in several countries, including the United States and the United Kingdom, leading to legal battles that challenged and eventually redefined the limits of literary expression and censorship.


    Our hosts, barristers and literary buffs, Peter Leonard and Mark Tottenham discuss some of the many issues around the case taken in the US including some nuggets that you'll be able to 'drop' at the dinner party table when next discussing why you haven't finished reading Ulysses.


    As always, Peter and Mark also discuss some more recent cases from the Decisis.ie casebook.


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  • E77 The Fifth Court - with @Mark Tottenham BL and @Peter Leonard BL

    With thanks to Clio Legal Software


    Something you may not have considered.

    The Polish community, numbering above 100,000, is one of Ireland's largest non-Irish communities. Naturally, they need legal representation and advice. So who do they go to?


    Krystian Boino obtained his masters degree from the University of Wroclaw, Poland in 2003. By 2006 he had completed a judge’s apprenticeship and successfully passed exams which entitled him to apply for judge vacancies in Poland. Krystian also qualified as a Polish solicitor (Radca Prawny) and is a fully qualified Irish solicitor since 2013.


    Krystian says he's the only such lawyer from Poland registered in Ireland having full professional qualifications in both jurisdictions. He has been practicing since 2006 with William Crean & Co Solicitors and then with JC Hoban & Company Solicitors. He established Hoban Boino Solicitors in partnership with Joanne Hoban. Krystian advises clients from both Ireland and Poland as well as many other nationalities. He specialises in personal injury litigation and employment law and also advises clients in wide range of aspects of Polish law regarding wills and property.


    Peter and Mark also take a look at three more curious cases from the Decisis.ie casebook

    An Order 67 company law caseA case involving a guarantee given by a father for a son's debts, when the father tragically died.A case where the court was asked to adjudicate on the transfer of a vulnerable minor to the UK for care as suitable care was not available in Ireland.

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  • E76 The Fifth Court

    DSBA 'Podcast of the Year'


    With thanks to Clio Legal Software


    Hosts Mark Tottenham BL and Peter Leonard BL interrogate Senator (and former councillor) Barry Ward BL about the powers that local authorities have and the claimed powers of local councillors (especially in the light of claims made in election literature).He discusses all aspects of local authorities including the corruption of the 1990's, the number of elected councillors and whether that could/should be cut, what the office of the new elected Mayor of Limerick might mean, and why other EU countries appear to have a better system of local government than Ireland (which ranks close to the bottom of surveys).

    Barry's 'cultural recommendation'? Fatherland, by Robert Harris, a 1992 novel of alternate history conceived as: "What might have happened if the Nazis won World War II?


    Our hosts also look at a further three cases from the Decisis.ie casebook

    A tax compliance case where a tax payer wanted to cross examine his investigating revenue officer. The judge decided it was an attempt at trying to delay the case.A personal injuries case where a woman claimed she fell over tree roots that had broken through the pavement. She couldn't tell the court exactly where she fell nor did any of her three friends who her with her on the night of the fall choose to give evidence. A case involving the Charity Regulatory Authority and their powers of search (the CRA has assumed powers previously held under the AG's office). The Court decided that there was no obligation on the CRA to give advance warnings of investigations.

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  • E75 The Fifth Court - recorded at the Solicitor's Growth Summit


    Our hosts, Mark Tottenham BL and Peter Leonard BL are joined by barrister Joe Brolly BL, the well know GAA football analyst who played at senior level for Derry and was a member of that county's only All-Ireland Senior Football Championship winning side in 1993. An entertaining romp through the life and times of the well known lawyer and pundit. About the Northern Troubles, according to Joe his mother always said, 'he started the Troubles'. Having won an All-Ireland he was dispirited and wondered 'Is that it?' He denies Mary McAleese's description of him being (one of her) outstanding students. Great entertainment.

    His book recommendation? 'The Fight' by Norman Mailer.


    Peter and Mark also delve into three more cases from the Decisis.ie casebook. They include:

    A bankruptcy case where there was non-disclosure of a property in Thailand and a BVI company. A case involving an 'enduring power of attorney' where a woman was said not to have the ability to control her own affairs.A child abduction case where the judge decided it was not in the child's interest to be sent back to Ireland from Poland.

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  • E74 The Fifth Court with Mark Tottenham BL and Peter Leonard BL


    From Riverdance to the Four Courts, a life after RTE for TV personality turned barrister Cynthia Ni Mhurchú who is hoping for another career pivot as she stands for election for the EU Parliament. Obviously there was discussion with our two hosts about the iconic Eurovision Song Contest night, presented in Dublin by Cynthia and the late Gerry Ryan along with Michael Flatley, 'The Bull McCabe' is how she describes him, and the beautiful Jean Butler. She relives that truly electric evening along with "The Rock'n'Roll Kids"

    After TV came a career in law and she concentrates on family law nowadays, saying about herself that she 'does a lot of listening'. However a fateful meeting at a dinner convinced her it was time to head for Europe where she hopes to make a change, particularly around women and the law.


    This episodes cases from the Decisis.ie casebook include;

    A medical negligence case involving a woman who sustained injuries during childbirth back but the defence claimed that the statute of limitations applied.A property dispute involving a family home.A wardship case about whether a woman, a ward at the time, was allowed to take control of her own life again.

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  • E73 The Fifth Court with @Mark Tottenham BL and @Peter Leonard BL were invited to attend a conference in Dublin Castle celebrating 100 years of Irish courts


    Part 2. Our hosts interviewed Mr. Justice Gerard Hogan and Prof. Diarmaid Ferriter of UCD discussing the founding of the Irish courts system post British rule, the effect of an increase of the number of Supreme Court judges from 3 to 5, the 1937 Constitution ("not the creation of one man [De Valera]"), pushback to the creation of the Office of President, the great understanding of De Valera of constitutional law drafting, "the '37 Constitution was a very significant human rights document", the Constitution was a 'great success',


    Plus three more recent important cases, drawn from the Decisis.ie casebook including

    An injunction successfully granted against a winding up petition against a businessA Landlord and Tenant case about a claim of frustration of a lease due to Covid.A Personal Injuries case taken by a former pupil against his old school long after having left.

    With thanks to Clio legal software


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  • E72 The Fifth Court with @Mark Tottenham BL and @Peter Leonard BL were invited to attend a conference in Dublin Castle celebrating 100 years of Irish courts


    Part 1. Our hosts interviewed Mr. Justice Gerard Hogan and Prof. Diarmaid Ferriter of UCD discussing the founding of the Irish courts system post British rule, how politicians had to 'tread softly' to keep some of the more conservative lawyers on side, how referrals to the British Privy Council were ended, and on a lighter note, whether Mr. Justice Hogan would have preferred to the Brehon Law type robes that had been mooted!


    The two host also discuss three more cases from the Decisis.ie casebook

    The first case involved a non-compete clause where a senior staff member joined a rival company.The second High Court case is a Succession Acts case and a dispute involving three siblings and a question over signatures on disclaimersThe third case is a Defamation action involving businessman Declan Ganley and news outlet CNN

    With thanks to Clio Legal Software


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  • Episode 71 The Fifth Court with Peter Leonard BL and Mark Tottenham BL

    The Apple Tax Case


    Will they, won't they? Should they, would they?


    Questions, questions, questions about the now infamous 'Apple tax case' whereby some groups are hoping to make the Irish State accept more than €13bn in taxes they say are owed by the global iPhone maker. Meanwhile the Irish Government is hoping to avoid receiving this massive windfall!


    It's a case without precedent in Ireland that has given its own windfall to the commentariat.

    On this episode our hosts interview Dr. Charles Garavan, lawyer and tax expert, who is Assistant Professor at the Business Faculty at UCD. (BTW, he's also a 'memory man' that you'll learn more about on the podcast. Fascinating.).

    The Apple case may be heading, slowly but finally, towards a conclusion. This interview is an 'Apple Tax 101' that will have you perfectly informed when discussing it with colleagues.

    Charles' book choice is 'A Guide to the Good Life' by William B. Irvine


    As always our two hosts also delve into three recent cases from the Decisis.ie casebook, including;

    A habeas corpus application where the judge ruled that a doctor had withheld relevant informationA personal injuries case where an employee cut themselves whilst carrying trays. The judge in this case decided there was partial responsibilityA case under a European Arrest Warrant where a Czech national was wanted for road traffic offences in his native country. The judge ordered him sent back.

    With thanks to Clio legal software


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  • E70 The Fifth Court


    Hosts Peter Leonard BL and Mark Tottenham BL entertain a most entertaining guest on this episode. Des Geraghty, a national figure for his work in the trade union movement, former president of SIPTU, one time MEP, a writer, musician and so much more (as you'll hear) joins our two interlocutors to discuss the most interesting cases ( as there were a number) involving the so-called Sinn Fein Funds. The conversation eventually gets to the London based Hurlingham private members club, founded in 1869, and how its history had a direct bearing on where those so-called 'Sinn Fein Funds' ended up. It will also be of interest to students of recent Irish history as to how Judge Kingsmill Moore traced back the Sinn Fein lineage. A bit of 'Who Do You Think You Are' on The Fifth Court.


    Three cases from the Decisis legal casebook include;

    A case involving a collision at sea involving a trawler and a bulk carrier. One of them made 'foolhardy turn' according to the judge hearing the case.A second is a personal injuries case and the discovery of medical records. The judge decided he didn't want any fishing expeditions.The third case is yet another Isaac Wunder order where Mr. Justice Charles Meenan decided that the appellants had made scurrilous claims.

    With thanks to Clio Legal Software.


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  • E69 The Fifth Court with Mark Tottenham BL and Peter Leonard BL


    Liam Herrick, Executive Director of the Irish Council of Civil Liberties talks about the so-called 'Hate Speech' legislation and how difficult it can be to prosecute and enforce such laws. It's a very timely interview about some of the many complexities that could arise from such legislation, but also about the reasons that the legislation may be needed in the first place.


    Liam also discusses his three years working as general adviser to Uachtarán na hÉireann, Michael D Higgins. Fascinatingly he asserts that the media and others are incorrect when they query whether the President's 'words' have been cleared by the Government. He says that such permission is simply not necessary and may be 'imagined by the commentariat'. He calls it an 'incredible misconception'. He also talks about when the President visited the UK.


    And, as usual, our interlocutors discuss three recent cases drawn from the Decisis casebook including;

    + A challenge to a planning permission given to a windfarm. Judge Egan decided that the windfarm was too noisy.

    + A 'delay' case where little or nothing had proceeded in this case since 2009 but was in front of the courts again in 2023.

    + A case where a family in a 'Witness Protection Programme' were seeking new marriage certificates and birth certificates to confirm the family's new identity. However, it seems it's not that straightforward to get a new identity, and legislation may be needed.


    As always, essential listening for practitioners, students and the curious public.

    With thanks to Clio Legal Software


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  • E68 The Fifth Court

    Winner Dublin Solicitors' Bar Association Legal Podcast of the Year


    Hosts Peter Leonard BL and Mark Tottenham BL discuss some of the biggest and best known Irish corporate law cases with one of the Big Beasts in corporate law in Ireland, solicitor and Senior Counsel Paul Egan, who has the most fascinating background in theatre, music and music composition. There's even mention of Mike Oldfield, of Tubular Bells fame. We doubt if you knew that about this seriously eminent lawyer?

    Paul's choice of books for listeners are 'Barbarians at the Gate' and 'Servants of the Damned'. He also recommends the movie 'Wall St.'.


    Peter and Mark also tackle three recent high profile cases from the Decisis casebook.

    A case involving the signing of a bond in reference to a suspended sentence. But the case got a bit more complicated than that when the accused left court without having signed the bond.A second case involving a family law issue and an overseas bankruptcy that could have a direct bearing on the family law hearing.Finally, a planning case involving the granting of a planning permission for a Strategic Planning Development and An Bord Pleanála

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  • E67 The Fifth Court with Peter Leonard BL and Mark Tottenham BL


    On this episode, former Garda sergeant now barrister, Michael Daly BL, author of a new book on drink and drug driving in Ireland discusses some of the many legal issues involved in this most contentious area of law.


    The book a meticulously compiled guide, unravels all the dimensions of drink and drug driving offences offering up the knowledge and insights necessary to navigate this ever-evolving complex area of law. His book draws on judgments of the Superior Courts in this jurisdiction and elsewhere, and explores the intricate web of statutes, regulations and constitutional principles that inform this area of law.

    From the initial stop by the Gardai to sobriety tests, blood alcohol concentration analysis and trial procedures, each stage of the legal process is dissected with precision. This arms the reader with a comprehensive understanding of the nuances involved.

    The layout follows a chronological order from the initial suspicion by Gardaí right through to an appeal to the Circuit Court or a case stated.

    Beyond the courtroom, the broader implications of drink and drug driving is referred to including, but not limited to the rights of victims, comments by the Judiciary and the cost to society.


    Peter and Mark also discuss three more cases from the Decisis.ie casebook.

    A case involving a property dispute where there were questions about the property's titleA labour law dispute between a trade union and a large construction contractor focussed on previous agreements and whether all necessary criteria had been met.A third case involving the purchase of property in Italy by a number of family members and where the judge decided that a full hearing of the facts was necessary.

     

     


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  • E66 The Fifth Court


    Hosts Mark Tottenham BL and Peter Leonard BL have a most entertaining discussion with retired District Justice, Olann Kelleher, about his fourteen years on the bench in Cork (as well as being on the bench for the historic Munster V All-Blacks match in 1978 - including a classic one-liner from legend Moss Keane).

    The former judge says there are too many loopholes in our drink/driving laws and they need to be updated. Continuing on the alcohol theme his greatest shock was the abuse suffered by A&E nurses and other staff who are regularly attacked by drunken patients. He cites the case of one nurse who was so traumatised by being attacked that she'll never work as a nurse again.

    He is hugely concerned about the amount of cocaine use in Cork and he explains how he dealt with 'first time cocaine' cases along with the Probation Services.

    And he refers to the harassment of Cork legend Roy Keane by locals, a subsequent court case and the wisdom of the Number 16 shirt wearer and why he insisted on bringing the matter to court, against the wishes of his then employers.

    His recommendation of a legal book for either professional or lay person is Ruadhán Mac Cormaic's book, 'The Supreme Court' - easily the most recommended book on the podcast.

    This interview will put a smile on your face.


    Our interlocutors also review three cases from the Decisis.ie casebook

    A waste management case and the refusal of a permit to a person deemed not 'fit and proper'A case involving a planning delay that our two barristers felt would have great significance for 'delayed' cases.A case about misconduct in court (accused threw a bible at the judge) and whether the accused could be sanctioned by the Prison Authority.

    With thanks to Clio.com/ie


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  • E65 The Fifth Court

    Saoirse Brady, Executive Director of the Irish Penal Reform Trust, joins Peter Leonard BL and Mark Tottenham BL, to talk all things prisons related (including the problems caused by mental health issues in jails - a very, very big problem according to Saoirse). Interestingly, research from Maynooth University is showing that a big majority (9 out of 10) of employers are willing to give ex-prisoners a chance in the workplace, something that may surprise.

    On the date of recording the Irish Prison System was at 107% capacity.

    Her recommendations for a book include 'Poor' by Katriona O'Sullivan and 'Just Mercy' by Bryan Stevenson


    And, as always, our interlocutors interrogate some recent high profile legal cases from the Decisis.ie casebook:

    The first case concerns the cost of judicial review where the respondent was a solicitor.The second case concerns fixed penalty notices given out by An Garda Síochána during the Covid lockdownThe third case, in the name of the fada, is about the use of the 'síne fada' (or as Google likes to describe it, 'the long extension'), on websites. A case for the Data Protection Commission.

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  • E64 The Fifth Court, boldly going where no legal podcast has gone before.

    Hosts Mark Tottenham BL and Peter Leonard BL talk to Zeldine O'Brien BL, a recognised expert in international space law who knows who 'owns' the Moon? What laws do you have to observe if you venture into outer space? Can you sell property on other planets? This is just brilliant, and not at all as straightforward as you may imagine.


    Zeldine is a practising barrister and holds a Ph.D on international space law. During her years of doctoral research, she was a participant in the European Space Agency's student participation programme. She has published widely in the field of space law in Ireland, the Netherlands and the U.S. and has taught at Trinity's Law School. She has also taught in Kosovo with the Irish Rule of Law International's project there in coordination with the Kosovo Chamber of Advocates. She is a member of the Society of Legal Scholars.


    As always our dynamic duo of interlocutors discuss three recent prominent cases from the Decisis.ie casebook.

    A case between Ryanair and On The Beach Ltd, concerning the latter's alleged screen scraping.A case involving a lay litigant who brought proceedings against the HSE, arising from certain medical treatments but the appellant hadn't brought any expert medical opinion to support her claim. In the third case the issue of 'nesting', where children remain in the family home, whilst the parents move in and out, alternately, following a separation, something that arises when two parents can't afford two separate homes.


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  • E63 The Fifth Court


    With two referendums (*see note below) looming, hosts Mark Tottenham BL and Peter Leonard BL invited two top law academics to studio to discuss the issues involved. Deirdre McGowan of TU Dublin and Maebh Harding of UCD are two of the authors of a book, 'Family Law in Context', a textbook for those wishing to study the latest developments in family law. Before the two women discuss the referendums they give an update on developments in family law in Ireland (e.g. very few people seek nullity any more). They say that a 2 year wait for divorce is still too long. And they discuss surrogacy, recently highlighted by the 'Rosanna Davidson case'.


    The hosts also discuss three cases from the Decisis.ie casebook

    A case about the wording of a will involving alternate executorsA very long running case involving the spraying of commercially grown apples by a potato farmer adjoining the apple farm.A planning case about the claimed overshadowing of a passive solar house and the role of an expert in his own case.

    *P.S. Scholars often use referenda as the plural for referendum. This choice is a hypercorrection—it may sound like proper Latin, but it is not. Referendums is always the correct choice. However, we maintain that there is value in using referendums for multiple events and referenda for multiple propositions.


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  • Episode 62, hosts Peter Leonard BL and Mark Tottenham BL, discuss the Northern Ireland Troubles Legacy Act 2023 - an extremely controversial piece of legislation with well-known solicitor Darragh Mackin. "You wouldn't see the like of it in Russia."


    Darragh Mackin of Belfast based Phoenix Law, has been described as ‘a rising star on the international legal scene. In 2016, Darragh was the first ever Ireland based Lawyer to win, an award at the prestigious London Legal Aid Lawyer of the Year Awards. He has developed a specialist practice in Human Rights, Public Law, Actions against Public Authorities and International law. He continues to appear in some of the most complex Inquests and Inquiries in Ireland, acting for 47 of the families in the Stardust Inquest and appearing in the Ballymurphy Inquest.

    Darragh's cultural recommendations are 'Are You With Me?: Kevin Boyle and The Rise of the Human Rights Movement by Mike Chinoy and Spider Woman: A Life

    Book by Brenda Hale, Baroness Hale of Richmond

    As always Peter and Mark take a look at three recent cases from the Decisis Law Reports casebook

    A case involving 37 aircraft, valued at $2 billion, allegedly owned by a Russian company (in liquidation) that in turn said had given a 'pledge agreement' against their value to a 'connected company', but hadn't been registered as a charge, therefore were null and void. Those pledge agreements 'fell away'.A case involving a medical practitioner accused of rape. The Medical Council sought to suspend the accused from practice. The dilemna here is the 'presumption of innocence' versus the 'protection of the public'. He was allowed to continue to practice as long as he was chaperoned. Investigations continue.A case about the valuation of land, however brought 'out of time'.

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  • E61 The Fifth Court

    Hosts Peter Leonard BL and Mark Tottenham BL have a wide ranging discussion with outgoing Data Protection Commissioner, Helen Dixon, about all things data protection, including the newest redress arising out of the 2018 GDPR Act, that allows for 'non material damage'.

    Amongst many insights she gives she says that there is excessive citing of GDPR by companies and organisations regarding access to data. Her office regulates most of the Big Name tech companies due to having their 'control around decision making' in Ireland (regardless of where the bulk of their business is done). She says her office has imposed billions of Euro in fines, though due to legal appeals only some tens of millions of Euro has been collected so far (that money goes to Ireland's central exchequer). Helen ends her ten years tenure as Commissioner soon and will shortly join Comreg as one of of three commissioners.

    Her book recommendation is The Kidnapping (about the kidnapping of Don Tidey)

    Her movie choice is 'Patrick a young Traveller lost'. (RTE Player)


    The hosts also look at three cases from the Decisis.ie casebook including:

    A case involving 'an expression of doubt' in a tax case that was referred to as a 'questionable tax avoidance mechanism'.A 'delay case' in a claim against an architect that went right back to 2012.A case involving an expert witness on 'monkey bars' in a children's playground, and an expert report that was not produced in court.

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  • E60 The Fifth Court

    Interlocutors, Peter Leonard BL and Mark Tottenham BL, put the CEO of the Corporate Enforcement Authority, Ian Drennan, under the spotlight.

    An accountant, Ian worked on the infamous DIRT inquiry during his time with the Comptroller and Auditor General's office and he discusses those times. In 2002 he moved to the nascent Office of Director of Corporate Enforcement, that now employs 80 people. He details the difference between the two bodies, the CEA and ODCE. The CEA has the powers of search, seizure and arrest that may come as a surprise to some. Ian's office receive up to 800 company liquidator reports a year and each one has to be examined, and challenged where appropriate. In about a third of the cases they review, further investigation may be merited.

    He recommends a book, Administrative Law Nutshell that gives a comprehensive overview of Irish administrative law.


    And as always Mark and Peter also look at three recent high profile cases from the Decisis Law Reports casebook

    In the first case, it concerns an Isaac Wunder order, an order issued restricting the ability of a vexatious litigant to institute legal proceedings without leave from that or another court, whether for a specified period of time or indefinitely. (Named after Isaac Wunder, an Irishman who became notorious for instituting a number of actions that were subsequently deemed by the court to be frivolous or vexatious)The 2nd case is a labour law case where a fireman claimed he was working during his time being on 'standby'. Spoiler. You're not working while you're waiting by the telephone for that 'call to action' call.A case where there was a delay of three and a half years in 'road rage' proceedings was deemed acceptable by the High Court.

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  • E59 The Fifth Court

    The Future of Legal Practice Summit, Part 2, at The Law Society of Ireland


    Our award winning podcasters, Peter Leonard, BL and Mark Tottenham BL, are joined by solicitors Sonia McEntee (Cavan based) and David Peters (based in Nenagh, Tipperary) to discuss the very real threat to the legal profession in rural Ireland. In this second part of their interview from the Legal Practice Summit they tackle issues such as access to justice as local courts are closed. Peter seems to hark back to the Tipperary town court, that was warmed by a turf fire, but sadly now closed! David Peters correlates the closure of local courthouses with the ending of local legal practices, leading to 'legal deserts' as he calls them. There's also some frustration with the rising level of regulation required of smaller practices. These views lead on to some terrific questions from the floor of the Summit...with so much engagement the session had to be extended. Terrific.

    And as always our dynamic duo start with three recent cases from the Decisis.ie casebook

    The first case involves an application to annul a bankruptcy but an action requiring a 'duty of candour' which may not have been met.The second case involved a Notary Public and the requirement that they be 'available'. But how available is available?The third case is about a planning issue in County Meath, involving the 2014 County Development Plan.

    Sign up for your own personal copy of the podcast at TheFifthCourt.com


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