Robert Ebert v Ferrari S.p.A
| Court | High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court, King's Bench Division |
| Judge | Mrs Justice O'Farrell DBE |
| Hearing | 7 July 2026 |
| Judgment | 3 September 2026 |
| Proposed Claimant and Applicant | Robert Ebert |
| Proposed Defendant and Respondent | Ferrari S.p.A |
| Claim number | HT-2025-000239 |
| Matter | Application to set aside an order permitting service out of the jurisdiction of an application for pre-action disclosure |
Summary
Can the court order a company outside England and Wales to give pre-action disclosure of documents that are also outside England and Wales? Mr Ebert said the Court of Appeal had settled the point in his favour. Ferrari said section 33 of the Senior Courts Act 1981 stops at the jurisdiction.
The court agreed with Ferrari. Nothing in section 33 displaced the presumption that Parliament legislates for its own territory, and the Hague Evidence Convention pointed the other way. The order permitting service out was set aside. Ferrari won.
Background and facts
On 9 June 2015 Mr Ebert, a British citizen working in Hong Kong, lost control of a Ferrari 458 Spider, which struck and killed a security guard. He was speeding. His defence at the criminal trial was that the brakes had failed without warning; a Ferrari engineer gave evidence for the prosecution that a sudden loss of vacuum which cleared itself on a single brake was not possible. He was convicted, served 14 months of a 22 month sentence and was deported to the United Kingdom.
On 28 October 2021 Ferrari recalled the 458 Spider model of the same year as Mr Ebert's car for a braking system that could leak fluid and lose braking capability. His proposed claim is that those defects caused the crash, that Ferrari knew or should have known of them, and that the trial evidence was false, misleading or negligent.
Mr Ebert applied under CPR 31.16 for board minutes, reports, communications with the parts manufacturer, the parent company and insurers, and the instructions given to the engineer before he gave evidence. On 5 September 2025 Waksman J gave permission, without a hearing, for service on Ferrari in Italy. Ferrari applied to set that order aside, on evidence that it is run from Italy and that any such documents would sit in Italy or on a server in the Netherlands.
The issue
Whether an application for pre-action disclosure under section 33(2) of the Senior Courts Act 1981 falls within the gateway in paragraph 3.1(20) of Practice Direction 6B where the respondent and the documents are both outside the jurisdiction; and, if so, whether the serious issue, forum and discretion limbs of the service-out test were met.
The decision
An application for pre-action disclosure is a claim giving rise to proceedings under CPR Part 6, so the first step into the gateway was taken. That was not enough: following Orexim, the enactment relied on must itself contemplate proceedings against persons outside the jurisdiction. Gorbachev had decided that section 34 reaches a foreign third party where the documents are in England and had left open the position where they are abroad.
On a natural and ordinary meaning of the words used in section 33(2) of the SCA, there is no express indication that Parliament intended to depart from the presumed territorial limits of its legislative jurisdiction in respect of documents located in another sovereign state.Mrs Justice O'Farrell, paragraph 60
The Hague Evidence Convention was a strong indicator of what Parliament intended. Both the United Kingdom and Italy have declared under article 23 that they will not execute letters of request for pre-trial discovery, the Evidence (Proceedings in Other Jurisdictions) Act 1975 carries the same restriction into domestic law, and the English courts make no outgoing request wider than they would accept. A broader power over documents in another state would offend comity. Gorbachev was distinguished: there the documents had been sent to solicitors in England. Here nothing linked Ferrari or the documents to the jurisdiction.
The solution, in an appropriate compelling case, would be to use, rather than to circumvent, the letter of request procedure and seek to persuade the foreign court as to the exceptional justice of the case.Mrs Justice O'Farrell, paragraph 68
Section 33(2) therefore does not reach a party out of the jurisdiction in respect of documents located outside it, and the court had no power to permit service out. That decided the application. The judge took the remaining limbs expressly for completeness, and each failed too. Mr Ebert's solicitor accepted that a claim could be pleaded without the documents, and the categories were tied to no list of issues.
Raising serious allegations of conspiracy, fraud or concealment should not be used as a basis for pre-action disclosure unless the allegations are clear and specific, demonstrate some evidential foundation and the request for disclosure is appropriately focused.Mrs Justice O'Farrell, paragraph 83
England was not clearly the appropriate forum, Hong Kong being where the accident and the trial took place, and on discretion the application was an attempt to go round the letter of request procedure.
Practical implications
A claims practitioner meets this problem more often than the facts suggest: the design house is in Germany, or the equipment supplier that ran the failure investigation is in Italy. If the documents you need before you plead sit with a company abroad, CPR 31.16 will not fetch them.
The danger is spending a year and the costs of a service-out application to learn this. Mr Ebert obtained his order in September 2025 and lost it a year later, with costs still to be decided.
The merits test is tightened for every pre-action application. An applicant who could plead without the documents will struggle, and categories not tied to a draft list of issues will be called a fishing expedition.
Practice points
- Before applying for pre-action disclosure, establish where the respondent is and where the documents are. If both are abroad, section 33 does not reach them.
- Documents held abroad by a foreign respondent are obtained by a letter of request under the Hague Evidence Convention, addressed to the foreign court. Check that state's article 23 declaration first: Italy, like the United Kingdom, will not execute requests for pre-trial discovery.
- Do not use the disclosure application itself to find out whether any documents are in England. It is for the applicant to show that documents are, or are likely to be, within the jurisdiction.
- Where a foreign respondent has sent the relevant documents to advisers in England, the presumption against extraterritorial effect loses force. Identify any such link in the evidence.
- Draft a list of issues and tie every category of document to it. Categories drawn at large will be refused whatever the merits.
- If a claim can be pleaded without the documents, plead it. The court expects the issues to be defined before it orders disclosure, not after.
- Where deceit or concealment is relied on, in the claim or to answer limitation, put forward the evidence that supports it. Bare assertion will not carry a pre-action application.