The High Court has refused an application by Neil O’Toole to continue proceedings against EBS Mortgage Finance Unlimited Company after the company entered voluntary liquidation.
O’Toole brought Circuit Court proceedings in October 2020 against EBS DAC and EBS Mortgage Finance, alleging negligence, breach of duty and breaches of data protection law over the reporting of his mortgage repayment history to the Irish Credit Bureau.
An EBS letter sent in June 2020 acknowledged that a repayment had been incorrectly reported as missed because it was not made before the end of the month in which it fell due. The letter said the payment had been made within the first six days of the following month and that treating it as missed was considered unfair.
Before O’Toole commenced his case, his mortgage loan and security were transferred from EBS Mortgage Finance to EBS DAC with effect from 1 September 2020 under a statutory transfer scheme approved under the Asset Covered Securities Act 2001.
EBS Mortgage Finance later entered voluntary liquidation in December 2024. Under company law, court permission is required before proceedings can continue against a company in liquidation.
The key issue was whether any potential liability for the alleged data protection breach also transferred to EBS DAC with the mortgage business.
O’Connell J held that it did. The court found that reporting mortgage information to the Irish Credit Bureau was an activity incidental or ancillary to managing the mortgage account. Any liability arising from that reporting therefore arose “in respect of” the transferred business within section 58(9) of the 2001 Act.
The judge stressed that not every data protection liability would necessarily transfer with an account. A breach unconnected with a particular account, for example, could require a different analysis.
On these facts, however, there was no reasonable prospect of establishing that the liability remained with EBS Mortgage Finance. The application to continue proceedings against the company in liquidation was refused.