Ebert v Ferrari S.p.A. [2026] EWHC 2279 (TCC)

The Facts

Robert Ebert, a British citizen, was convicted in Hong Kong following a 2015 fatal accident while driving a Ferrari 458 Spider. Mr Ebert had argued that a sudden brake failure caused the crash, but the defence was rejected and his conviction and sentence followed. In 2021 Ferrari issued a global recall for certain models, including the 458 Spider, citing brake-fluid leakage risks that could cause partial or total brake loss. Ebert contends these issues caused his crash and that Ferrari’s trial evidence was false, misleading or negligent.

In 2025 Ebert applied in England for pre-action disclosure against Ferrari under CPR 31.16 and sought permission to serve that application in Italy. Permission was granted on paper, and Ferrari applied to set aside. Ferrari is incorporated in Italy, manages recalls from Italy, and said any responsive documents were in Italy or on Dutch servers; it argued the English court lacked power to order pre-action disclosure against a foreign respondent for documents abroad.

The Decision

The Presumption of Territoriality & Principles of Comity

The High Court set aside permission for service out. Mrs Justice O’Farrell held the court had no power to order pre-action disclosure under section 33 Senior Courts Act 1981 against a foreign respondent for documents located outside England and Wales. Applying the presumption of territoriality and principles of comity, the court found nothing in section 33 to rebut the presumption against extraterritorial effect. The court emphasised the Hague Evidence Convention framework and letters of request as the proper route for cross-border evidence, noting both the UK and Italy reserve against pre-trial discovery of documents in the common-law sense.

Documents in v Documents out of the Jurisdiction

The Court of Appeal’s decision in Gorbachev v Guriev [2022] EWCA Civ 1270 was distinguished: service out for disclosure can be allowed where the documents are within the jurisdiction, but the question of documents abroad had been left open. Here, both the respondent and documents were outside England and Wales. Even if a residual discretion existed, the court would not exercise it because the application sought to circumvent the letters of request regime and pursued broad “classes” of documents amounting to a fishing expedition.

No Serious Issue to be Tried

Separately, the court found there was no serious issue to be tried on the pre-action request. The categories were overly wide, the anticipated claim could be pleaded without disclosure, and the case theory was insufficiently particularised. England and Wales was not clearly the appropriate forum and the key connections were to Italy and Hong Kong.

The Significance of the Decision

This decision tightens the limits on using English pre-action tools to obtain early disclosure from foreign counterparties where the material sits abroad. Parties cannot use English pre-action disclosure to reach into overseas repositories simply because litigation is contemplated in England. Where evidence is located outside England and Wales, the proper route is an evidence request under the Hague Convention to the foreign court, calibrated to that state’s reservations and procedural safeguards.

For cross-border disputes, this means evidence strategy must be planned early. Consider where the counterparty and documents are located, how the foreign forum treats disclosure, and whether the contemplated claim can be particularised without pre-action documents. Broad, exploratory requests risk being struck out as fishing expeditions. Forum choice also matters: if the centre of gravity of the dispute or the evidence is abroad, English courts are less likely to allow service out for disclosure applications.

Key Takeaways

• The English court has no power to order pre-action disclosure against a foreign respondent for documents held abroad. This follows the presumption of territoriality and comity, absent express statutory wording.
  
• Use Hague Convention letters of request for documents outside England and Wales. Both the UK and Italy reserve against broad pre-trial discovery.
  
• Do not rely on pre-action disclosure to test whether any documents might be here or abroad. The court rejected using the process to ascertain document location.
  
• Avoid fishing expeditions. Overbroad classes and speculative theories undermine serious-issue and discretion thresholds.
  
• Forum and timing matter. Where people, events and documents are abroad, England may not be the appropriate forum for pre-action applications.