UK Construction and Law
The TCC will not order pre-action disclosure of documents held abroad
By Staff Writer | 4 September 2026
A driver convicted in Hong Kong after a fatal crash sought Ferrari's internal brake documents before suing. The Technology and Construction Court set aside permission to serve the application in Italy, holding that section 33 of the Senior Courts Act 1981 does not reach documents outside the jurisdiction.
Robert Ebert, a British citizen then living and working in Hong Kong, lost control of a Ferrari 458 Spider on 9 June 2015. The car left the road and killed a security guard. His defence at trial was sudden brake failure. A Ferrari engineer gave evidence for the prosecution that the condition described was not possible. Mr Ebert was convicted of causing death by dangerous driving, sentenced in October 2016 to 22 months, and deported to the United Kingdom after 14 months in prison.
On 28 October 2021 Ferrari issued a recall covering, among other classes, the 458 Spider of the same production year as his car. The stated basis was a braking system that could leak fluid and lead to partial or total loss of braking. Mr Ebert's proposed claim is that the defects caused the crash, that Ferrari knew or should have known, and that the evidence at his trial was false, misleading or negligent.
The application
He issued an application for pre-action disclosure under CPR 31.16 on 7 August 2025 seeking board minutes and reports on the braking issues, communications with the parts manufacturer, parent company and insurers, and internal communications about the trial evidence. Mr Justice Waksman granted permission on 5 September 2025, without a hearing, to serve the application on Ferrari in Italy. Ferrari applied under CPR 23.10 to set that order aside. Its evidence was that any such documents would be held at its headquarters in Maranello, in employees' mailboxes and devices in Italy, and on a back-up server in the Netherlands.
Mrs Justice O'Farrell heard the application on 7 July 2026 and gave judgment on 3 September 2026. The Court of Appeal in Gorbachev v Guriev had decided that the equivalent power over third parties allows service out where the documents are in England and Wales, and had expressly left open the position where they are abroad. She decided it. Section 33(2) contains no express indication that Parliament intended it to apply to documents in another sovereign state and no purpose from which that intention arises by implication. The United Kingdom and Italy both declared under Article 23 of the Hague Convention that they will not execute letters of request for pre-trial discovery of documents. Domestic law restricts the court's own power to give effect to incoming requests. It would be objectionable in terms of comity for the court to claim a wider power to reach documents abroad directly, and Parliament could not be taken to have created a parallel route around the mutual assistance scheme.
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, Technology and Construction Court
Every limb failed
The application therefore fell outside the jurisdictional gateway in paragraph 3.1(20) of Practice Direction 6B. The judge went on to find no serious issue to be tried on the merits of the disclosure application: the proposed claim was undefined even in outline, and deceit and conspiracy were asserted without evidence or a basis for inference. England and Wales was not clearly the appropriate forum, since the only connection was the applicant's residence and his losses, while Ferrari and the witnesses are in Italy and Hong Kong, the documents are in Italy, and the accident, the vehicle examination and the trial all took place in Hong Kong. Even had jurisdiction existed she would have declined to exercise it, because the application was an attempt to circumvent the letter of request procedure and sought classes of documents that procedure would never yield.
The order of 5 September 2025 is set aside and the court has declared that it has no jurisdiction over the application. Costs and any application for permission to appeal are to be dealt with after hand down.
For a construction practitioner the read across is direct. Claims against overseas manufacturers of cladding, fixings, plant and building systems begin with the same instinct: get the internal documents first, then plead. This judgment says that where the manufacturer and its documents are abroad, section 33 is not the tool, and the route is a letter of request through the courts of the state where the documents sit, subject to that state's reservations. A claimant who cannot outline a case without the documents will not get them this way.