O'Toole v EBS Designated Activity Company and Anor

APPROVED [2026] IEHC 247 2025 No. 84 COS IN THE MATTER OF EBS DESIGNATED ACTIVITY COMPANY and IN THE MATTER OF SECTION 678 OF THE COMPANIES ACT 2014 Between NEIL O’TOOLE Applicant and EBS DESIGNATED ACTIVITY COMPANY and EBS MORTGAGE FINANCE UNLIMITED COMPANY (IN VOLUNTARY LIQUIDATION) Respondents JUDGMENT of Mr Justice Micheál O’Connell delivered on 28 April 2026 Introduction 1. On 13 October 2020, Circuit Court proceedings bearing Record No. 005397/2020 (“the Circuit Court Proceedings”) were commenced by the Applicant, Neil O’Toole (“the Plaintiff”) as plaintiff, seeking various reliefs against EBS Designated Activity Company (“EBS DAC”) as first-named defendant and against EBS Mortgage Finance Unlimited Company (“EBSMF”) as second-named defendant. 2. On 16 December 2024, EBSMF passed a special resolution for its winding up and joint liquidators were appointed. 3. This application is made by the Plaintiff pursuant to section 678 of the Companies Act 2014 for leave to continue proceedings against EBSMF, and the disposal of the 1 application calls for an analysis of the scope of operation of section 58(9) of the Asset Covered Securities Act 2001 (“the 2001 Act”), in the context of the facts subtending the Circuit Court Proceedings. Section 678 of the 2014 Act 4. Section 678(1) of the 2014 Act, as far as relevant here, provides: “678. (1) When in relation to a company— … (c) a resolution for voluntary winding up has been passed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose.” 5. There was no real dispute about the principles governing the function of the court as it relates to section 678, which I summarise as follows: 6. First, section 678 reflects section 222 of the Companies Act 1963, save that its effects apply to companies in voluntary liquidation as well as companies in compulsory liquidation (an extension brought about under the 2014 Act). 7. Second, where proceedings are commenced without leave after the company goes into liquidation, an order may be made granting leave retrospectively (Re MJBCH Ltd [2013] 1 IR 407 (“MJBCH”)) 8. Third, the Court is engaged in the exercise of a discretion when deciding whether to grant leave to commence or continue proceedings, guided by the core objective to do “what is right and fair according to the circumstances of each case” (per Brightman LJ in Re Aro Co Ltd [1980] Ch 196 (at 209) as cited in Wright-Morris v Irish Bank Resolution Corporation (In special Liquidation) [2014] 3 IR 468 (“Wright-Morris”) (at 478) (in 2 reference to equivalent provisions in section 6 of the Irish Bank Resolution Corporation Act 2013) and Re Hibernation Therapeutics Global Limited [2014] IEHC 41). 9. Fourth, the jurisdiction engages a balancing exercise between a litigant’s constitutional entitlement to access to the court and the orderly and efficient winding up of companies for the benefit of all creditors (MJBCH at 410 (in the context of the power to grant retrospective leave) and Gilligan v Faxgore Ltd (In Liquidation) [2021] IEHC 605 (“Gilligan”) at paragraph 16 (in the wider context of section 678 applications)). 10. Fifth, the applicant plaintiff’s case is to be taken at its height and, in general, leave to commence or continue proceedings will be granted unless either the applicant could just as conveniently make a claim in the winding up, or the proceedings (as they relate to the company in liquidation) are considered to be frivolous and/or vexatious or bound to fail (see Gilligan, citing inter alia Wright-Morris and Re Exchange Securities & Commodities Ltd and others [1983] BCLC 186 (“Exchange Securities”)). 11. Sixth, factors that influenced the exercise of discretion against granting leave to proceed include the potential for conflict between mandatory orders sought by a plaintiff and the limited statutory functions and powers of a liquidator under section 677 of the 2014 Act, the futility of pursuing a claim against a company that had neither the assets nor insurance to meet it, delay in bringing an application for leave to proceed, and the absence of prejudice to the plaintiff of a refusal of leave (see Crumb Rubber Ireland Ltd (In Liquidation) [2020] IEHC 348 (“Crumb Rubber”), Lee Towers Management Company v Lance Investments Limited (In Liquidation) [2018] IEHC 444 (“Lee Towers”), David and Elizabeth Kennedy v. IBRC (In Special Liquidation) 2020/310 COS (The High Court, Unreported (O’Moore J, ex tempore) as referenced in the judgment of Gillane J in Pounds 3 v Irish Bank Resolution Corp Ltd (In Special Liquidation) [2025] IEHC 720 at paragraph 78). These sorts of factors, which logic would suggest do not present as a closed class, may operate as part of the analysis of the excluding factors (e.g. delay might render an action bound to fail, in application of the test in Kirwan v Connors [2025] IESC 21) or they might operate independently of those factors (since allowing cases to proceed in absence of the two exclusionary factors is expressed as a preference or presumption rather than a rule). Background to the proceedings 12. For the purpose of this chronology it may be noted that what is now EBS Designated Activity Company (i.e. EBS DAC) was (in its different legal forms) previously known as EBS Building Society and EBS Limited, and what is now EBS Mortgage Finance Unlimited Company (i.e. EBSMF) was previously known as EBS Mortgage Finance. I will use the titles applicable to each entity as it was at the time of each event identified. 13. As of 28 November 2008, EBS Mortgage Finance had been incorporated as a wholly owned subsidiary of EBS Building Society with unlimited liability and held a banking licence under section 9 of the Central Bank Act 1971 (“the 1971 Act”) and had been registered as a designated mortgage credit institution under the 2001 Act. 14. On 28 November 2008, EBS Building Society and EBS Mortgage Finance submitted to the Financial Regulator, for approval in accordance with section 58 of the 2001 Act, a Scheme (“the Scheme”) for the transfer of business between EBS Building Society and EBS Mortgage Finance (in respect of a particular identified tranche as well as for future transfers and re-transfers). 4 15. On 28 November 2008, Statutory Instrument No. 499/2008 (the Asset Covered Securities Act, 2001 (Approval of Transfers Between EBS Building Society and EBS Mortgage Finance) Order 2008)(“SI 499”), made by the Financial Regulator, approved the Scheme, subject as therein. 16. Although no affidavit evidence was before the Court as to when the mortgage loan agreement was made and the funds advanced, I was informed at the hearing that a letter of loan offer issued to the Plaintiff on 12 March 2009, and that the loan was secured on a mortgage of lands of the Plaintiff. I will assume, then, that either (a) the loan agreement was with EBS Mortgage Finance who duly advanced the loan and was granted the mortgage, or (b) the loan agreement was with EBS DAC who duly advanced the loan and was granted the mortgage, and subsequently transferred the loan to EBSMF in accordance with some Schedule to the Scheme (it is immaterial to this judgment which of these scenarios manifested). 17. On 1 July 2011, EBS Building Society demutualised, becoming EBS Limited, and was granted a banking licence pursuant to section 9 of the 1971 Act. 18. On 12 September 2016, EBS DAC acquired its current name, having re-registered as a Designated Activity Company. 19. It was not clear to me from the evidence when EBSMF acquired its current name, as would have been required under section 1237 of the 2014 Act, but I will assume that itb was during or shortly after the transitional period following the commencement of the 29014 Act. 5 20. On 9 June 2020, EBS DAC wrote a letter to the Plaintiff. At the foot of this letter, it was stated that: “EBS d.a.c. is an authorised agent and servicer of EBS Mortgage Finance (a wholly-owned subsidiary of EBS d.a.c.).” 21. The letter advised the Plaintiff of an error that the correspondent(s) (referred to as “we” throughout the letter without further clarification) had made, whereby they reported repayments on his mortgage loan account as a missed repayment to the Irish Credit Bureau (ICB) because it was not made before the end of the month in which it was due (this mixing of plural and singular in reference to missed payment(s) reflects the terms of the letter). The letter went on to state that, in circumstances where the repayment had been made within the first six days of the ensuing month, it was considered unfair to the Plaintiff to have reported it as a missed payment. The letter advised that, as the erroneous report was made more than 24 repayments previously, the information was no longer available to correct on the ICB, but confirmed that the report was no longer visible or available to any bank or financial institution. 22. Independently of the last letter, but around the same time (the affidavit evidence and the index to the exhibit appear inconsistent as to the precise date), a letter was sent to the Plaintiff by either EBS DAC or EBSMF to advise him of the intended transfer of his loan facility and security from EBSMF to EBS DAC. 23. On 31 August 2020 EBSMF by Schedule 19 of the Scheme, transferred to EBS DAC, with effect from 1 September 2020, all residential mortgage assets and business identified therein (including Plaintiff's mortgage loan account). The effect of this event – which I will label “the 2020 Transfer” – on the positions of the parties in the Circuit Court Proceedings presents the core dispute in this application. 6 24. On 13 October 2020, the Plaintiff issued the Circuit Court Proceedings, naming both EBS DAC and EBSMF as defendants. The proceedings alleged negligence, breach of duty, including statutory duty, and specifically breaches of the Data Protection Act 2018 (“the DPA”), the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016) (“the GDPR”), and breaches of the Central Bank of Ireland’s Consumer Code and Code of Conduct on Mortgage Arrears. The reliefs claimed are: “1. A declaration that the Defendants, individually and or collectively, breached the Data Protection Acts 1988 & 2003, and or the Data Protection Act 2018 and General Data Protection Regulation (EU) 2016/679, as applicable, in the opinion of this Honourable Court. 2. An order mandating the Defendants, individually and or collectively, to disclose to the Plaintiff the full extent of how the Defendants processed the Plaintiff’s personal data, with particular regard to the ‘mistake’ as identified by the Defendants. 3. Damages for negligence and breach of duty including statutory duty, not exceeding the jurisdiction of this Honourable Court. 4. Any further or other order as this Honourable Court may deem appropriate under the circumstances. 5. The costs of these proceedings.” 25. Following the entry of an Appearance in the Circuit Court Proceedings, and a motion for judgment in default of Defence, an Order was made by the Circuit Court on 23 May 2022 extending the time for delivery of a Defence for a period of eight weeks. The Defence was not delivered within the said eight-week period. However, the parties subsequently agreed to stay the Circuit Court Proceedings pending the outcome of certain other “front- running” proceedings in which issues relevant to the same were scheduled to be addressed by the Court of Justice of the European Union and the Supreme Court. 7 26. The front-running proceedings that caused the parties to agree to stay the Circuit Court Proceedings have since been resolved (arising from the judgment of the Supreme Court in Dillon v Irish Life Assurance plc [2025] IESC 37), allowing the Circuit Court proceedings to progress. However, in the meantime, on 20 December 2024, the solicitors for EBS DAC and EBSMF wrote to the Plaintiff’s solicitors advising that a decision had been made to appoint a liquidator to EBSMF, confirming that EBS DAC would “assume any liability of [EBSMF],” and stating that – in any event – EBSMF should not have been named as a defendant to the Circuit Court Proceedings in light of the 2020 Transfer, which transferred its liabilities to EBS DAC. The letter proposed that the solicitors for EBS DAC and EBSMF would make application in the Circuit Court Proceedings to amend the title so as to remove EBSMF. 27. The solicitors for the Plaintiff rejected this proposal and, ultimately, this application was brought on behalf of the Plaintiff pursuant to section 678 of the 2014 Act for leave to continue the Circuit Court Proceedings against EBSMF. The issues to be determined. 28. It was common case that the Plaintiff’s claim cannot conveniently be pursued as a claim in the liquidation of EBSMF: this is understandable, since the Circuit Court Proceedings are a wholly contested matter requiring adjudication by a court on foot of an action rather than, say, a motion for directions. 29. The parties focussed primarily on the core legal question whether the Plaintiff’s claim against EBSMF is bound to fail. If it is not bound to fail, then (subject to the discretion afforded to the Court) the usual result would be that leave should be granted. 8 30. The Defendants (an expression that, for ease of communication, includes reference to the liquidator of EBSMF) contend that the claim against EBSMF is indeed bound to fail. For the purpose of this application, the Defendants do not rely on any substantive defences that either of them might have to the claim made: rather, they contend that, taking the case at its height, EBS DAC alone would be liable as a matter of law in respect of those remedies because of the 2020 Transfer. This, they say, is a necessary consequence of the provisions of section 58(9) of the 2001 Act, SI 499 and the Scheme (including its Schedules). 31. The Defendants also argued that the Plaintiff would suffer no prejudice, since EBS DAC is a mark for the reliefs claimed and is in a position to preserve all relevant records. 32. I emphasise that – leaving aside factors such as were identified in Crumb Rubber and Lee Towers – the task for the Defendants is to show that the claim against EBSMF is bound to fail in the sense analogous to the test under Order 19 rule 28 of the Rules of the Superior Courts (see the comments of Stack J in Gilligan, at paragraph 16). The parties agreed that it was not enough that I might conclude, on balance and having regard to the evidence before me, that the liability has transferred to EBS DAC, if there remains a possibility that evidence or more developed argument at trial might alter that conclusion (see, in the analogous context of an application to strike out proceedings, Moylist Construction Limited v Doheny [2016] 2 IR 283 at paragraph 18). 33. Inasmuch as factors of the type identified in Crumb Rubber and Lee Towers (including the appropriateness and effectiveness of granting the substantive reliefs sought against the liquidator and the prejudice caused to the Plaintiff by a refusal of leave) form part of the test, the evidence adduced in this application was limited. In answer to my question, I was advised that defending claims such as this would be inconvenient and would delay 9 the liquidation of EBSMF, but it is difficult to lay too much emphasis on this as I had no evidence as to whether there were other claims or factors that might operate to delay the liquidation independently of the Circuit Court Proceedings. Section 58 of the 2001 Act 34. Section 58 of the 2001 Act sets out the basis upon which the “business” or “assets” of one credit institution may be transferred to another credit institution, including certain consequences of a transfer. It has been amended twice, first, by section 44 of the Asset Covered Securities (Amendment) Act 2007, and second, by Regulation 29 of the European Union (Covered Bonds) Regulations 2021. It was thus identical in terms on the date of SI 499 (28 November 2008) and on the date of the 2020 Transfer (1 September 2020). 35. To make sense of section 58, it may be useful to note the following definitions and explanations: (a) EBS Building Society was not a “designated credit institution” as at the date of SI 499/2008 although had become one by the date of the 2020 Transfer. (b) Three section-specific definitions are set out in subsection (13) of section 58: (i) the expression “assets” means “mortgage credit assets, public credit assets or substitution assets, or any securities, contracts of guarantee or indemnity or contracts of insurance relating to any such assets or any other assets connected with all or any part of a business of a credit institution” 10 (ii) the expression “relevant person” means “if the relevant credit institutions are not associated, the Minister or, if the relevant credit institutions are associated, the Authority” and in this case, it may be noted that EBS DAC (including in its previous guises) was at all material times associated with EBSMF. (iii) the expression “security” is non-exhaustively defined to include “mortgage, assignment, charge, lien, pledge and encumbrance.” (c) “Authority” is defined in section 3 to mean the Central Bank (d) “The Minister” is defined in section 3 to mean the Minister for Finance. (e) “Obligation” is defined in section 3 to “include[…] a liability.” 36. As far as relevant here, and as it was on the dates of both SI 499 and the 2020 Transfer, section 58 provided as follows: “(1) A designated credit institution may transfer to another credit institution (including one that is not a designated credit institution) the whole or part of its business, or all of its assets or such of those assets as it specifies, but only with the approval of the relevant person and in accordance with this section. (2) A credit institution that is not a designated credit institution may transfer to a designated credit institution the whole or any specified part of its business, or all of its assets or such of those assets as it specifies, but only with the approval of the relevant person and in accordance with this section. … (4) The transferor credit institution and transferee credit institution are required to jointly submit to the relevant person for approval a scheme for the proposed transfer of the business or assets concerned. The scheme must contain such details as that person may require with respect to that business or those assets and must specify the date or dates on which the transfer is to take place or how that date or those dates are to be ascertained. 11 (5) As a prerequisite to giving approval under this section, the relevant person may impose on the parties to the proposed transfer such conditions relating to the scheme as that person thinks necessary for the purpose of— (a) safeguarding the interests of the parties to the transfer and of persons who have financial obligations in respect of the business or assets concerned, (b) ensuring an orderly transfer of that business or those assets, and (c) providing for publication of the proposed transfer. (6) On being satisfied that a scheme submitted under subsection (4) will achieve the purpose referred to in subsection (5) and that the conditions (if any) imposed by that person in respect of the scheme have been or will be complied with, the relevant person— (a) shall, by order, approve a transfer of the business or assets concerned, and (b) shall publish a notice giving particulars of the transfer in one or more daily newspapers circulating in the State. … (8) A transfer of a business or assets under this section takes effect— (a) subject to any conditions imposed on the approval of the transfer, and (b) on the date or dates specified in the scheme. (9) On the transfer of a business or assets under this section— (a) the transferee credit institution has the same rights (including priorities) and obligations in respect of that business or those assets as the transferor credit institution had immediately before the transfer took effect, and (b) the transferor ceases to have those rights and obligations. … (11) If legal proceedings are pending immediately before the time when a transfer under this section takes effect, those proceedings are to continue. At that time, the transferee credit institution— (a) replaces the transferor credit institution as a party to the proceedings, and (b) assumes the same rights and obligations in relation to those proceedings as the transferor credit institution had immediately before that time. 12 … (12A) A designated credit institution shall be, and shall be deemed always to have been, entitled to transfer its assets or business by any means permitted by law other than this section……” 37. As the case was argued, the core issue in dispute was whether the contingent liability of EBSMF in the Circuit Court Proceedings is a liability “in respect of” the business and/or assets transferred by the 2020 Transfer. 38. Had these proceedings been commenced before 1 September 2020, consideration would be required to be given to the effect of subsection (11) which relates to pending actions, but that was not the case, so the focus remains on subsection (9). The Scheme 39. As noted, the Scheme in this case is dated 28 November 2008. It does not purport to operate as a transfer in itself; rather, it sets out the rules and effects of a transfer of assets or business between EBS DAC and EBSMF. Transfers themselves would be contained in Schedules. 40. The Scheme contained several defined words and phrases, including: (a) “Mortgage Assets”, defined “as the context may require” to mean “Commercial Mortgage Assets and/or Residential Mortgage Assets” (b) “Mortgage Business”, defined “as the context may require” to mean “Commercial Mortgage Business and/or Residential Mortgage Business” (c) “Residential Mortgage Assets,” defined “in respect of a Transfer” to mean: 13 “one or more assets, comprising all or part of a Transferor’s rights, title, benefits and interests at the relevant time, in, under and to: (a) One or more Residential Mortgage Loans, related Offer Letter(s) and any Relevant Account(s), held by the relevant Transferor as specified in the relevant Transfer; (b) The Related Security for the Residential Mortgage Loan(s) referred to at paragraph (a) above…” (d) An extensive definition of “Residential Mortgage Business” is set out over two pages of single-spaced lines of text, so I will not set it out here in full. It is an expansive statement of the benefits and obligations that might apply or attach to lending business or lending applications or related transactions, and includes – at sub-paragraph (j) – a reference to “the rights, title, interests and obligations of the relevant Transferor at the relevant time in, to and under all documents….received by the Transferor from its customers….and which relate to the making or dealing in Residential Mortgage Loans (together with activities directly related thereto) and, to the extent applicable, the requirements of …the Data Protection Acts, 1988 and 2003,….and any other enactment….”. (e) “Transfer” defined as “a transfer, pursuant to section 58 of the Act in accordance with the Scheme, of Mortgage Business and/or Mortgage Assets from the relevant Transferor to the relevant Transferee on the relevant Transfer Date, as specified or stated in Schedule 1 or another Schedule entered into by EBS and EBSMF in accordance with the Scheme in respect of the transfer.” 41. Clause 2 sets out the process by which Transfers are to become effective: (a) Clause 2.2 provides: “Where EBS and EBS MF propose to make a transfer other than the transfer under schedule, they shall notify the Financial Regulator, et 14 cetera, and prepare a schedule in accordance with paragraph 2.3 below, and subject to paragraph 2.4 below, send a copy of that schedule to the Financial Regulator.” (b) Clause 2.3 provides: "A schedule of the kind referred to in 2.2 of the scheme shall specify or state the following: The relevant residential mortgage business and/or residential mortgage assets which are the subject of a transfer in the form of Schedule 2 below or the relevant commercial mortgage business and/or commercial mortgage assets which are the subject of a transfer in the form of Schedule 3 below and the transfer data or how the transfer data is to be determined." 42. Schedule 1 appended to the Scheme was to be the first Transfer pursuant to the Scheme, while Schedule 2 was a specimen document to be populated with information for the purpose of future Transfers. SI 499 43. As will be seen from section 58 of the 2001 Act, in order that a scheme might become effective, and that the provisions of inter alia section 58(9) be engaged, that scheme was required to be presented to the “relevant person” (that is to say, the Central Bank in the case of associated institutions) pursuant to section 58(4), and approved pursuant to section 58(6). As of 28 November 2008, section 33C of the Central Bank Act 1942 (since repealed) designated the Financial Regulator to perform the functions of the Central Bank inter alia in the approval of transfers under section 58. Accordingly, it was to the Financial Regulator that the Scheme was presented, and by him that SI 499 was made, both events occurring on the same date, 28 November 2008. 44. SI 499 recited the context of the matter, reflecting what is set out above, and set out a series of definitions, including of the words: 15 (a) “Scheme” which denoted the Scheme; (b) “Transfer” which (nearly identically to the Scheme) was defined as “a transfer pursuant to section 58 of the Act and in accordance with the Scheme of Mortgage Business and/or Mortgage Assets from the relevant Transferor to the relevant Transferee as specified or stated in Schedule 1 or another Schedule entered into by EBS and EBSMF in accordance with the Scheme” (c) “Mortgage Business” and “Mortgage Assets” which are both defined to reflect the expressions as used in the Scheme. 45. Regulation 5 then witnessed the approval by the Financial Regulator of “each Transfer (including, without limitation, that contemplated by Schedule 1) to be made in accordance with the Scheme” and imposed a condition in Regulation 6 that is not relevant here. 46. Regulation 8 of SI 499 provides: “8. On a Transfer (including, without limitation, that contemplated by Schedule 1) of Transfer Mortgage Business and/or Transfer Mortgage Assets as specified or stated in Schedule 1 or, as applicable, another Schedule made in accordance with the Scheme, as provided for in section 58(9): (a) the relevant Transferee has the same rights (including priorities) and obligations in respect of that business or those assets (as specified in the relevant Schedule) as the relevant Transferor had immediately before the relevant transfer took effect; and (b) the relevant Transferor ceases to have those rights and obligations.” 47. It seems to me that this mere restates the effect of section 58(9) of the 2001 Act, and as such is surplusage. 16 Schedule 19 48. Schedule 19, giving effect to the 2020 Transfer, is stated on its face to have been made on 31 August 2020 and denotes EBSMF as Transferor, EBS DAC as Transferee and a Transfer Date of 1 September 2020. The document is expressly identified as a Schedule for the purpose of the Scheme and identifies at paragraph 3 the “Residential Mortgage Business” and at paragraph 4 the “Residential Mortgage Assets” said to be subject to the Transfer, which were contained in a “CD ROM or other electronic data file” as certified by Messrs Deloitte Ireland LLP. There is no dispute between the parties that the Plaintiff’s mortgage loan and associated security were within the scope of the 2020 Transfer. The meaning of the expression “in respect of” 49. It is clear that Schedule 19 did not purport, in terms, to transfer the liability if any of EBSMF on foot of the cause of action accrued to the Plaintiff as disclosed by the letter of 9 June 2020 to EBS DAC. Whether that liability did or did not transfer on foot of the 2020 Transfer depends on whether section 58(9) captured it as a liability “in respect of” the assets and/or business transferred. 50. Several authorities from different jurisdictions were opened to the court (some of which cited in turn older authorities which have been of some assistance). In chronological order, I have considered the decisions in Tatam v. Reeve [1893] 1 Q.B. 44 (E&W)(“Tatam”); Trustees Executors and Agency Co. Ltd v. Reilly [1941] VLR 110 (Aus)(“Reilly”); Paterson v Chadwick [1974] 1 WLR 890 (E&W) (“Paterson”); British and Commonwealth Holdings plc v Barclays Bank plc [1996] 1 WLR 1 (E&W)(“Barclays”); Eccles Hall Ltd v. Bank of Nova Scotia (Unreported, High Court (Murphy J), 3 February 1995) (IRL)(“Eccles Hall”); Rodan [“Rexodan” in some 17 citations] International Ltd v Commercial Union Assurance Co plc [1999] Lloyd's Rep IR 495 (E&W)(“Rodan”); Gulliver v. Brady [2003] IESC 68 (IRL) (“Gulliver”); R.(Geologistics Ltd) v FS Compensation Scheme [2004] 1 WLR 1719 (E&W)(“Geologistics”); Albon v. Naza Motor Trading Sdn Bhd [2007] 1 WLR 2489 (E&W)(“Albon”); Campbell v O’Donnell [2009] 1 IR 133 (IRL) (“Campbell”); Donnelly v Vivier & Co. Ltd [2022] IECA 104 (IRL)(“Donnelly”); Hyper Trust (t/a the Leopardstown Inn) v FBD Insurances plc [2023] IEHC 455 (IRL)(“Hypertrust”); Diamrem v Cliffs of Moher Visitor’s Centre [2023] IECA 235 (IRL)(“Diamrem”); and R(Manchikalapati) v FSCS [2024] 1 WLR 1383 (E&W)(“Manchikalapati”). 51. A number of these judgments emphasise the capacity of the expression “in respect of” to capture a wide range of things and circumstances. The most oft-cited passage expressing the capacity for breadth encapsulated by these words is to be found in the judgment of Mann CJ in Reilly (at p 111): “The words 'in respect of' are difficult of definition but they have the widest possible meaning of any expression intended to convey some connection or relation in between the two subject-matters to which the words refer.” 52. In Reilly, a statutory provision protected certain farmers from proceedings “in respect of a debt” unless a particular notice had first been served on them, and the question arising was whether such a notice had to be served where the proceedings were not for a debt simpliciter but for ejectment arising from non-payment of rent. It was held that the statutory notice was required in such a context. The arrears of rent – the “debt” – was essential to the entitlement to possession. 53. This view aligns with a similarly broad interpretation given to the expression in Tatam almost 50 years earlier. Section 1 of the Gaming Act, 1892 provided that “any promise, express or implied, to pay any person any sum of money paid by him under or in respect 18 of any contract or agreement rendered null and void by [the Gaming Act 1845, i.e. a gaming contract] shall be null and void, and no action shall be brought or maintained to recover any such sum of money.” The defendant requested that the plaintiff to pay money to certain persons to whom the defendant owed gambling debts, and the plaintiff, having not been recompensed, sued the plaintiff. The action failed. Per Lord Coleridge CJ: “I agree that [the monies] were not paid "under" such a contract or agreement, because there was no contract of betting or gaming between the plaintiff and the defendant; but the money was paid in respect of gaming debts which the defendant owed to the persons to whom the plaintiff paid it, and it was paid in order to discharge those debts. Except that the defendant owed the money to those persons, he would not have given the plaintiff the order to pay it: how can it be said that it was not paid "in respect of" those debts?” 54. Mann CJ’s dictum in Reilly has been followed or approved in several of the other decisions referenced above, in particular Paterson, Albon, Campbell, Hyper Trust and Diamrem. 55. In certain of the other decisions, it was emphasised that the meaning of the words “in respect of” depended on their context and that the dictum of Mann CJ had to be seen in the context of the facts of Reilly. In Barclays, the context was section 178(2) of the UK’s Companies Act 1985 (which was concerned with companies that had issued redeemable shares or had agreed to purchase their own shares) and provided that “the company is not liable in damages in respect of any failure on its part to redeem or purchase any of the shares” (emphasis added). In that case, under a court-sanctioned scheme of arrangement, a company issued redeemable shares to a certain entity and – as part of the same scheme of arrangement – entered into covenants with the plaintiff banks (who effectively guaranteed the scheme by funding a third party to acquire the shares in the event of a default by the company) to conduct its affairs to maintain certain asset rates. The issue was whether the company could avoid liability to the plaintiff banks for breach of 19 covenant, when the breaches of covenant and failure to redeem shares were part of the same scheme arrangement and arose from the same cause. Aldous LJ recommended caution in relying on the authorities (at 8): “Both parties cited authority as to the way that courts have construed the words “in respect of” as used in other statutes. For myself, I have only found those authorities of limited help, as words, such as those under consideration, have to be construed in context and therefore caution is necessary before adopting reasoning used by judges when considering the same words in a different context.” 56. In specific reference to Reilly, he said (at 10): “In that case, an essential, perhaps the essential, ingredient to establish the right to possession was the debt. Thus the application was in respect of a debt although it was not to recover the debt. That can be contrasted with the present case where the cause of action for breach of the covenants did not depend upon the failure to redeem. The statement that the words “in respect of” have “the widest possible meaning of any expression intended to convey some connection or relation between two subject matters,” when read in context, are not persuasive as to the meaning of section 178(2) of the Act of 1985.” 57. In Rodan, a majority of the Court of Appeal for England and Wales adopted a restrictive view of the expression “in respect of” as it appeared in an insurance policy. The claimant’s business involved the supply of produced a certain soap powder product, a consignment of which was sold to a particular wholesale customer. The product deteriorated as a result of an interaction between the product and its packaging, which the wholesale customer contended was a defect in the product, such that it became unsaleable, and the wholesale customer sued the plaintiff in damages for (i) for the difference between the sound value of the product and its actual (damaged) value; (ii) expenses incurred in extra handling; (iii) the cost of packaging pre-ordered for the purpose of onward sale of future deliveries; and (iv) loss of future sales by reason of damage to the wholesale customer’s brand. The question was as to whether the claimant’s insurance covered any or all of these heads of claim made against it. The policy expressly covered “a. all sums which the Insured shall become legally liable to 20 pay for compensation and claimants' costs and expenses in respect of any Occurrence to which this Cover applies as stated in The Specification and in connection with the Business” (emphasis added) but expressly excluded “liability in respect of recalling removing repairing replacing reinstating or the cost of or reduction in value of any commodity article or thing supplied installed or erected by the Insured if such liability arises from any defect therein or the harmful nature of unsuitability thereof” (emphasis added). 58. It was noted that the case was argued without reference to authority. The Court of Appeal (per Hobhouse LJ (nem diss)) concluded that the High Court judge was wrong to equate the expression “in respect of an [insured] Occurrence” with “in connection with [such] Occurrence” and from that to consider that the policy covered liability to the wholesale customer arising not from the product actually supplied but from the loss of future profits arising from the wholesale customer’s refusal to accept further deliveries. Thus: “[t]he effect of the decision of the Judge to treat the words "in respect of the Occurrence" as meaning no more than “in connection with the same causes of action as gave rise to the liability for the Occurrence” transforms this cover from a products liability cover to a policy covering general contractual liabilities.” 59. I think that it was open to the court to conclude that “in respect of” equated with “in connection with” while still concluding that the connection was inadequate to cover losses arising from general contractual liabilities. 60. Geologistics was concerned with legislation requiring employers to maintain insurance covering liability for inter alia personal injury claims by their employees. Under separate but related legislation, a scheme of indemnity was created to guard against the risk that an employer/policyholder, who had put in place insurance to meet their legal insuring 21 obligation, might be left without cover due to the insurer insolvency if their insurer. The scheme entitled policyholders to the full amount of what they were entitled to from the insolvent insurer, but with the rider that the indemnity did not extend to liabilities arising “otherwise than in respect of a liability of the policyholder which is a liability subject to compulsory insurance” (emphasis added). The question was whether the indemnity scheme covered an employer’s own defence costs. It was agreed in argument that a claimant’s costs were a liability “in respect of” a compulsorily insurable liability; however, it was argued that defence costs were of a different order. Defence costs were not themselves compulsorily insurable, but they would be within the scope of the indemnity if the policyholder’s liability for their own defence costs was a liability “in respect of” the compulsorily insurable liability. For the Court of Appeal for England and Wales, Waller LJ considered Reilly, Paterson, Barclays and Rodan, but emphasised the different contexts and concluded (at Para 17): “I do not get much assistance from the authorities. They simply demonstrate that the proper construction of the words will depend on their context.” 61. He went on to conclude, in the context of the facts before him, that “in respect of” meant the same thing as “in connection with” and that – just as claimant costs were covered – so too were defence costs. The fact that the incurring of defence costs was not to the claimant and was not a sine qua non (since it was always open to the employer not to engage legal representation) did not amount to a distinction. Inasmuch as Geologistics appears to conflict with Rodan on the use of “in connection with” as a surrogate for “in respect of,” it recognises the breadth of meaning of both phrases and the need for a contextual analysis. 62. Geologistics was discussed in a recent decision of the Court of Appeal for England and Wales in Manchikalapati, which was also concerned with a compensation scheme 22 covering insurer insolvency. An insurer had declined claims made by certain policyholders who had brought High Court proceedings and had secured awards of damages, statutory interest and costs. The substantive damages awards were paid but the insurer became insolvent before the interest and costs were paid, and a claim was made against the statutory scheme. The scheme rules allowed for the recovery of compensation where the loss was “in respect of a protected claim.” A “protected claim” was “a claim under a protected policy of insurance.” The word “claim” was defined as: “… a valid claim made in respect of a civil liability: (1) owed by a relevant person; or (2) owed by a relevant person which has been assumed by a successor and which is based on the acts or omissions of relevant person; under a contract of insurance.” (emphasis added) 63. Relevantly, there was a separate provision entitling a policyholder to claim interest on a compensation sum. When the scheme refused the claim for compensation in relation to costs and interests, judicial review proceedings were taken by the policyholders. The High Court judge noted that Geologistics was concerned with different rules but considered it a “valuable steer” and observed that, just as defence costs were considered integrally connected with the core liability, the liability of the insurer in the case before him was “integral to, part and parcel of or sufficiently connected to” the compensatable liability. The Court of Appeal took a different view, noting the difference of wordings as well as the fact that the “provisions being construed in Geologistics did not form part of a body of rules which, as I will endeavour to explain, contain other strong indicators as to the correct interpretation of “in respect of” where it appears in that rule” (per Falk LJ at paragraph 47). Geologistics was concerned with legal costs that were within the scope of the policy of insurance concerned (the only question being whether they were “in respect of” compulsorily insurable liability) whereas in Manchikalapati the liability of 23 the insurer to the policyholders in respect of which compensation was claimed was on foot of a court order and statute (i.e. statutory interest). While the definitions of “protected claim” and “claim” used the words “in respect of”, they also required that the claims be “under” the contract of insurance. In that context, the expression “in respect of” did not carry a meaning equivalent to “in connection with” or “integral to,” but instead meant “for” or “for the payment of” (see paragraphs 67-68 of the judgment of Falk LJ). 64. In Campbell the expression “in respect of” was discussed in the context of certain provisions of the Personal Injuries Assessment Board Act 2003. By section 12 of that Act, proceedings in respect of certain types of actions (“civil actions” as defined therein) may not be brought until an authorisation is issued by the Personal Injuries Assessment Board, and the definition of “civil action” referred to an action for recovering damages “in respect of a wrong” for personal injuries or personal injuries and damage to property. The principal question was whether proceedings against the MIBI on foot of the MIBI Agreement – which sought specific performance as a primary remedy – required a PIAB authorisation. The Supreme Court unanimously held that it did, and that the claim against the MIBI was a claim “in respect of a wrong” even if the MIBI was not the wrongdoer. In so doing, the Court discussed the meaning of the expression “in respect of” as follows (per Kearns J (nem diss) at 142/3): “[32] The fact that the phrase “in respect of” is one of wide application may be seen from Paterson v Chadwick [1974] 1 WLR 890. This was a case where a solicitor had been instructed to take proceedings on behalf of a plaintiff for damages for personal injuries sustained as a result of treatment in hospital. The solicitor failed to institute the proceedings in time and the plaintiff in the action sued the solicitor in negligence and sought discovery of the medical records and other documents relating to her injury. The defendant contested the application on the grounds that within the relevant section of an Act in the United Kingdom the proceedings against the solicitor were not a claim being 24 made “in respect of personal injuries”. The headnote for the decision of the English High Court (Boreham J) [1974] 2 All ER 772 states as follows:- “The words 'in respect of' in s 32(1) were words of the widest import signifying some connection or relation between the two subject-matters referred to. Since the nature and extent of the plaintiff's personal injuries formed an essential ingredient in the proof of her claim against the solicitors, there was a clear connection or relation between the claim and the personal injuries. It followed therefore that the plaintiff was a party to proceedings in which a claim was being made 'in respect of personal injuries' and accordingly the appeal would be dismissed.” 65. The judgment goes on to cite and approve the passage from the Judgment of Mann CJ in Reilly. 66. The decisions in Albon and Donnelly were both concerned with service of process out of the jurisdiction (Albon relating to England and Wales and Donnelly this jurisdiction) and reviewed together, they demonstrate the importance of the word or words succeeding the expression “in respect of” in as part of the context in which the expression is to be construed. 67. In Albon, the High Court of England and Wales was considering rule 6.20(5) of the Civil Procedure Rules which provided that a claim form might be served out of the jurisdiction with the permission of the court if: “(5) a claim is made in respect of a contract where the contract- (a) was made within the jurisdiction [and] …(c) is governed by English law” (emphasis added) 68. The issue was whether a claim against a Malaysian company grounded in restitution and not in contract, seeking the return of overpayments made by the claimant in the performance of an agency contract, was amenable to an order for service out of the jurisdiction, in circumstances where the contract was most closely connected with 25 English law. The court held that it was. The expression “in respect of a contract” was not the same as “under a contract” a conclusion that followed from the decision in Tatam. 69. Donnelly was – like Albon – concerned with service out of the jurisdiction of proceedings, specifically Order 11 rule 1(e) of the Rules of the Superior Courts, which permits service out of the jurisdiction of an originating summons or notice of an originating summons in various cases including where: “(e) the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or other relief for or in respect of the breach of a contract (i) made within the jurisdiction; or (ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or (iii) by its terms or by implication to be governed by Irish Law, or is one brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;” (emphasis added) 70. The claim in question was for damages quantum meruit in respect of services alleged to have been rendered to the defendant, a New Zealand company. Ní Raifeartaigh J considered the decision in Albon and noted the importance to that decision of the presence in CPR 6.20(5) of the expression “in respect of a contract” (as distinction from “in respect of the breach of a contract”). At paragraph 118 she said: “… one might even raise the further question as to whether the Irish “contract” gateway under Order 11(1)(e) is necessarily as broad as the English “contract” gateway, since our provision (unlike the English one) does not use the phrase “in respect of a contract”, which is broadly interpreted in the law of England and Wales. Our Order 11(1)(e), as we have seen, refers to claims to “enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover 26 damages or other relief for or in respect of the breach of a contract…”. The English provision uses the language of where “a claim is made in respect of a contract…”. Arguably the phrase “in respect of a contract” is a significant difference of wording…” 71. In circumstances where it was not necessary to the determination of the case and in the absence of detailed argument on the issue from the parties, she left over for decision in another case a more detailed analysis of the comparative widths of the gateways in the two jurisdictions, holding that the claim before her was “in reality an unjust enrichment claim rather than a claim derived from a contract” in consequence of which “there [was] no obvious gateway available … under Order 11(1)…” 72. In Hyper Trust, McDonald J considered inter alia Reilly, Albon and Donnelly, in the context of a clause in an insurance policy under which a claim had been made arising from losses during the Covid pandemic. The policy provided that the indemnity would be subject to a deduction equivalent to “… any sum saved during the indemnity period in respect of such of the charges and expenses of the business payable out of gross profit as may cease or be reduced in consequence of the damage” (emphasis added). The Plaintiff had benefited from certain government supports in consequence of the pandemic and the issue was whether the quantum of those supports was to be deducted from the insurer’s liability under the policy. McDonald J noted the breadth of the expression and noted that that view was taken by the courts in relation to “similar phrases” such as “in relation to” (see Gulliver) and “in connection with” (see Eccles Hall). He distinguished the expression “in consequence of” which – although capable of requiring something less than proximate cause – nevertheless entails a qualitatively greater level of connection. 73. The decision in Diamrem arose in a particular context, namely the costs protection provisions in the Environment (Miscellaneous Provisions) Act 2011. These rules displace 27 the normal rule that costs follow the event, inter alia in cases where an unsuccessful plaintiff or applicant institutes proceedings “in respect of the contravention of, or the failure to comply with” (emphasis added) inter alia a grant of planning permission (see section 4(1)(b)). Woulfe J referred to Donnelly, Albon, Reilly and Tatam and noted (at paragraph 59) that in his experience “the words “in respect of” are invariably given a very wide meaning.” It may be observed that Diamrem was a case that fell clearly on one side of the line. 74. From the foregoing, I would draw the following propositions: (a) The expression “in respect of” is a broad connector and, when used by reference to a particular subject, is capable of identifying a wide array of other subjects that have a connection with it (Campbell, Hyper Trust, Diamrem, Reilly) (b) In general, the expression “in respect of” will have a wider scope than “in consequence of” or “under” (Tatam, Albon, Hyper Trust) (c) Nevertheless, differences in specific wordings and in the context in which they are used mean that statements of interpretation in the authorities should be approached with some caution, as context (including other words and phrases and the objectives of the contract or legislation) may dictate narrower meanings (Geologistics, Barclays, Manchikalapati) (d) A “but for” analysis can be of assistance (Reilly, Tatam, Geologistics) but should not be treated as determinative (Geologistics, Manchikalapati) 28 (e) Subject to the caveats above, the expressions “in connection with” and “in relation to” may be treated as having a meaning equivalent to “in respect of” (Hyper Trust). 75. The above is by no means comprehensive and is so general and caveated as to be of limited assistance, but unlike the judges in Geologistics and Manchikalapati, I have found the authorities to be of considerable assistance in analysing the meaning and effect of section 58(9) of the 2001 Act. Whether liability in the Circuit Court Proceedings is an obligation “in respect of” the business or assets transferred by the 2020 Transfer 76. As noted earlier, the word “obligations” as it is used in section 58(9) of the 2001 Act includes “liabilities.” It was common case that contingent liabilities must also be within its meaning: in other words, in order to examine the question whether the Plaintiff’s claims fall within the scope of what transferred across to EBS DAC, one must take the Plaintiff’s case at its height. It was also common case that the Plaintiff’s loan account and mortgage – as assets in the hands of EBSMF or as part of the business of EBSMF – transferred to EBS DAC on foot of the 2020 Transfer. 77. Counsel for the Plaintiff readily accepted that liability of a credit institution to return an overpayment to its customer was a liability “in respect of” that customer’s account, and would transfer with that account under section 58(9); likewise a credit institution’s liability for its breach of a mortgage loan agreement. On the other hand, it was submitted that a wide range of liabilities could not be within the scope of the provision: for example, liability under a claim by an employee for a breach of their employment law rights, or the personal injuries claim of a customer entering the credit institution’s premises to make a lodgement to their account (a fortiori a non-customer entering to open an account). An 29 action grounded in the GDPR and DPA – it was submitted – was not a liability “in respect of” the transferred business. 78. Counsel for the Plaintiff emphasised that the word “business” as contemplated by section 58(9) was not wide open, and in this regard, he identified the provisions of section 27 of the 2001 Act which listed certain activities to be “permitted business activities” for the purpose of Chapter 1 of Part 4 of the 2001 Act. A series of activities were listed in section 27(1) as follows: “(a) providing mortgage credit and dealing in and holding mortgage credit assets, (b) dealing in and holding substitution assets, (c) dealing in and holding assets of a kind that, in accordance with a requirement of the Authority made under the supervisory enactments, designated mortgage credit institutions are required to hold for regulatory purposes, (d) dealing in and holding credit transaction assets, (e) dealing in and holding tier 2 assets, (f) engaging in activities connected with financing or refinancing assets of a kind mentioned in paragraphs (a) to (e), (g) entering into contracts in accordance with section 30 for the purpose of hedging risks associated with any other activity of a kind mentioned in paragraphs (a) to (f), and (h) engaging in activities that are incidental or ancillary to carrying on any other activity mentioned in paragraphs (a) to (g).” 79. Further elaboration was provided in subsections (2)-(5) of section 27. 80. A caveat associated with this definition arises from the fact that is for the purpose of Chapter 1 of Part 4 of the Act only, whereas section 58 falls in Chapter 3 of the same 30 Part. At the same time, the definitional provision may exert some gravitational pull on the meaning of the expression in dispute, since section 28 precludes mortgage credit institutions from carrying on a business activity other than a permitted business activity, and if a liability (or indeed an asset) arises in respect of an activity that is precluded, then it may considered less likely that the Oireachtas intended that it would transfer pursuant to section 58. 81. It is important to recall, however, that it is not necessary that a liability should itself constitute “business” or an “asset” in order to pass from transferor to transferee: as long as it was a liability “in respect of” transferred business or assets, then it is captured. For the same reason, the fact that the Scheme (including its schedules) and SI 499 may not – in themselves – capture liabilities under the GDPR or DPA, does not mean that the liability under consideration here could not have transferred: axiomatically, section 58(9) of the 2001 Act captures liabilities not expressly or explicitly transferred by the Scheme. 82. Counsel for the Plaintiff submitted that it was of considerable importance that the Circuit Court proceedings are in pursuit of a distinct or standalone cause of action created by the DPA (identified as such by the Supreme Court in Dillon). This was presented as a point of distinction to Campbell, in which the action against the MIBI was derivative of the primary action against the uninsured defendant, which by any reckoning was an action in damages for negligence causing personal injuries. It does not seem to me that this distinction assists in the analysis. In the first instance, the 2020 Transfer preceded the commencement of the Circuit Court Proceedings, so while the pleadings in that action may assist identifying the nature of the liability, they cannot be determinative. But even apart from that, in the context of contingent liabilities actionable at law or in equity or pursuant to Statute against a transferor credit institution, I do not consider that the nature 31 of the cause(s) of action that might lie against that credit institution is determinative of the question whether that liability is an obligation “in respect of” a transferred asset or transferred business. To take the example of an overpayment by a customer on his or her account – generating a liability which both parties readily agreed would transfer under section 58(9) – that is a liability that might find expression in a restitutionary claim independent of contract, or a claim on, or for breach of, a contract, or a claim that pleaded both causes of action in the alternative. Whatever approach is taken, the liability is one that arose “in respect of” the account. The fact that duties under the GDPR and DPA subsist independently of the loan contract does not preclude the possibility that – on the facts – liability for a breach of those duties might arise “in respect of” the account (indeed, mishandling of account information might well constitute a breach of an implied if not express term of a loan contract in some cases, although the Plaintiff has not chosen to plead his case in that way). 83. In my view, one must examine the question through a wider lens, certainly taking into consideration the nature of the cause of action that gives rise to the liability, but treating it as a factor in the analysis rather than as a red light/green light issue. On the facts of this case, one must ask to what extent the liability that found expression claims made in the Circuit Court Proceedings stood apart and independent from the Plaintiff’s mortgage loan account and associated security. 84. It is correct to submit, as Counsel for the Plaintiff did, that a loan contract was not a prerequisite to liability under the GDPR or DPA: rather it was the holding, controlling and processing of the Plaintiff’s personal data that generated the legal duties and liabilities. In theory those duties could arise in the absence of an account. However, on the facts of this case, the personal data was held solely because of, and for the purposes 32 of administration of, the account. It was submitted on behalf of the Plaintiff that the liability pleaded does not touch and concern the performance of the loan or the adequacy of the security. I accept that issuing reports to the ICB (when it was operational) was not the performance of a contractual obligation owed by the lender to the customer: it was the exercise of rights reserved by the lender in the loan contract for the purpose of maintaining a credit register for the benefit of the lender and other credit institutions to make inquiries as to the creditworthiness of actual and potential customers. The loan agreement here was not in evidence but the parties were agreed that such a right would have been reserved in it and I can take judicial notice of the ubiquity of the reservation of such rights in loan agreements. 85. However, the fact that the right to issue reports to the ICB was a reserved right for the benefit of EBSMF (and subsequently EBS DAC) alone, does not mean that exercising it was coincidental or peripheral to the loan agreement and the Plaintiff’s account. This function or activity was structurally embedded in the contractual relationship between the parties, and the function of the ICB (and now the Central Credit Register) is critically important to the banking industry in this jurisdiction (see the comments of Hedigan J in Cagney v Bank of Ireland [2015] IEHC 288 at paragraph 8). In the circumstances, this function plainly fell within the concept of functions or activities that are incidental or ancillary to the provision and holding of mortgage credit as contemplated by section 27(1)(h) and (a) of the 2001 Act. 86. It follows that, if the liability arose in respect of the reporting function ancillary or incidental to a transferred account, then it arose in respect of the transferred business. The holding of the account was in this sense more than just a causa sine qua non of the liability, a factor that distinguishes the relationship under consideration here from the 33 relationship between liability and account in the example discussed at hearing, of a customer sustaining a personal injury while attending at his branch. 87. For reasons already set out, I do not agree with the submission made on behalf of the Plaintiff that the Scheme itself was required to capture within its terms (specifically in the definition of “residential mortgage business”) liabilities for breaches of the DPA or the GDPR: if the account is captured then the reporting function is likewise captured because it is incidental to the account, and if a liability arose from the conduct of the reporting function, then it arose in respect of the account and therefore the business transferred. 88. At hearing, there was some discussion about the reliefs being sought and whether the Plaintiff would be deprived of their benefit if the liability transferred to EBS DAC. Whether and to what extent this might operate to delimit the operation of section 58(9) of the 2001 Act is unclear, but I would leave an assessment of that question over for another case, because I am satisfied that no material prejudice would be suggested here: (a) A declaration in the context of a data protection action is an expressly-contemplated remedy recognised by section 117(4) of the 2018 Act. While a declaration against a non-party is unusual and of limited effect, if a declaration were made here in respect of EBS DAC in respect of any transferred liability for the acts or omissions of EBSMF, the import and effect would be the same as if EBSMF were still a party. (b) The disclosure remedy is in the nature of an injunction (which is also recognised by section 117(4) of the 2018 Act). The Plaintiff did not consider that it could rely on an undertaking to preserve the records of EBSMF, and queried how EBS DAC could ever comply with the mandatory relief sought requiring EBSMF to disclose 34 what it knew. Although theoretically attractive, I am satisfied that this line of argument does not disclose, on the facts of this case, to any meaningful prejudice. The wrongdoing the subject matter of the proceedings is remarkably simple and has been admitted, such that the documentary records required to be disclosed will be limited. Moreover, it seems clear that EBS DAC was in fact administering the account in an agency capacity notwithstanding that EBSMF was party to the account (and has undertaken to preserve the relevant records). In circumstances where the primary function of the liquidator of EBSMF is to gather in and distribute the assets of that company, the Plaintiff will most likely be in a better position if any disclosure order is directed to EBS DAC. Moreover, while the relief is sought as final relief, if the objective is to discover the extent of the wrongdoing, there is no reason why the information could not be sought as pre-trial discovery, and in the (unlikely) event that EBS DAC was unable to provide the information, non party discovery could be sought against the liquidator of EBSMF without the need to retain it as a defendant to the Circuit Court Proceedings. (c) There was no suggestion that EBS DAC would not be a mark for damages in a sum limited to the jurisdiction of the Circuit Court. (d) Similarly, there is no reason to expect that EBS DAC would not be in a position to meet an order for costs and ancillary relief. 89. The Plaintiff made a further submission that the Defendants were guilty of laches in raising the issue of a transfer of liability, in circumstances where it happened some four years before the point was actually raised in correspondence in December 2024. I am not satisfied that this complaint is made out, even assuming it is a relevant factor in an 35 application under section 678 of the 2014 Act. The fact is that no Defence has yet been delivered in the Circuit Court Proceedings, so the argument raised rather proves too much, as it would go equally to any other defence capable of being pleaded. Even if the winding up of EBSMF had not intervened, the fact remains that the Plaintiff agreed to a stay on all proceedings in the Circuit Court Proceedings without insisting on the delivery of a Defence in advance, and although the rationale for staying those proceedings has since expired, there was an obvious consensus between the parties that this application would be prioritised once it was issued. In the circumstances, even if laches was a factor in a section 678 application, it would not bear upon this case. Conclusion 90. It is clear that the statutory formula used in section 58(9) of the 2001 Act demands an individual assessment of every case that might arise, and whether a transfer of liability has occurred will in many cases be a question of degree. For example, a liability for breaches of EBSMF’s obligations under the GDPR or DPA might arise from matters unconnected with operations relating to a customer’s account, such as a deliberate or accidental release of personal information through inadequate safeguards against hacking or the like. In such a case, the connection will be weaker and, depending on the circumstances, the liability might not transfer with the customer’s account. There will also be “hard cases” some of which were discussed during the hearing, such as where a breach of data protection obligations occurs in a manner unconnected to any particular account of the customer, and then one, but not all, of his accounts is transferred. 91. The present case is not, however, one of those marginal or difficult cases and I am satisfied that the liability (which I say is assumed for the purpose of this application) arises in respect of the Plaintiff’s account which transferred to EBS DAC with effect from 36 1 September 2020. No evidence or line of factual inquiry into matters not before the court for the purpose of this application has been adverted to (or occurs to me) which might alter this conclusion: in the circumstances I am satisfied that there is no reasonable prospect of demonstrating that the liability did not transfer to EBS DAC, and consequently that the claim against EBSMF is bound to fail. 92. In the circumstances, I refuse the application for leave to continue the proceedings against EBSMF in liquidation. Note: The title of the proceedings identifies EBS DAC as the company to which the application relates. This is in error as the company in liquidation and consequently the company to which the application relates is EBSMF. Amendment of the title will require an order of the Court. 37