Braking news: Ebert v Ferrari determines the territorial limits of pre-action disclosure

In Ebert v Ferrari S.p.A [2026] EWHC 2279 (TCC), for the first time, the Technology and Construction Court has answered the question the Court of Appeal parked in Gorbachev v Guriev - whether the court has the power to order a respondent located out of the jurisdiction of England and Wales to provide pre-action disclosure of documents located outside the jurisdiction. Spoiler alert, but it does not. 

Background

Mr Ebert crashed a Ferrari 458 Spider in Hong Kong in 2015, killing a security guard, and served 14 months for causing death by dangerous driving. All parties agreed that Mr Ebert was speeding shortly before the accident; however, at trial his defence had been sudden brake failure. A Ferrari engineer gave prosecution evidence that the condition he described was not possible. In 2021 Ferrari recalled certain vehicles, including 458 Spiders produced in the same year as the vehicle that Mr Ebert was driving at the time of the accident, citing “a braking system that could potentially leak brake fluid, which may lead to partial or total loss of braking capability”. 

Mr Ebert’s potential claim is that those defects caused the crash and that the evidence at his trial was false, misleading and/or negligent. He obtained permission to serve an application for pre-action disclosure (under section 33(2) of the Senior Courts Act 1981 and CPR 31.16) on Ferrari in Italy. Ferrari applied to set this aside arguing that the court did not have the power to permit service of a pre-action disclosure application outside the jurisdiction for documents located abroad. 

The Court’s Analysis

The court considered the undisputed three limb test for service out of the jurisdiction in respect of an application for pre-action disclosure from Gorbachev v Guriev:

Limb (i) – Jurisdictional gateway

For the following reasons, the court decided that Mr Ebert’s pre-action disclosure application did not fall within the jurisdictional gateway under paragraph 3.1(20) of Practice Direction 6B and that section 33(2) of the Senior Courts Act 1981 does not, on its true construction, allow proceedings against a respondent abroad in respect of documents located abroad:

• The starting point is the principle of territoriality, the rebuttable presumption that legislation does not apply to persons and matters outside the territory to which it extends. This presumption is not displaced by any wording in section 33(2) of the Senior Courts Act 1981.
• The weightier point is comity. The UK and Italy are both parties to the Hague Evidence Convention and both declared under Article 23 that they will not execute letters of request for pre-trial discovery. Additionally, requests for classes of documents will not suffice; particular documents must be specified. The English courts have taken a symmetrical approach to both incoming and outgoing requests. Those declarations strongly suggest that Parliament never intended section 33(2) to extend abroad, and that any such order would likely not work given that Italy has said it will not execute such requests for pre-action disclosure. 
• Gorbachev was distinguished on its facts. There the respondent was outside the jurisdiction, but the documents were held by solicitors within it. Here, both Ferrari and the documents were outside the jurisdiction. 

That disposed of the application, but for completeness the court went on to consider the remaining limbs. 

Limb (ii) – Serious issue to be tried

There was no serious issue to be tried. A claim could be pleaded without any further disclosure, the categories sought were widely drawn and amounted to a fishing expedition, and no basis for the intended claim had been articulated. Pre-action disclosure in the commercial context is unusual, and allegations of conspiracy or concealment will not support it unless clear and evidentially grounded. 

Limb (iii)(a) – Appropriate forum

England and Wales was not the appropriate forum for the trial of the pre-action disclosure application. The stronger forum would have been Hong Kong, as it was where the accident took place and there was no evidence that an application for pre-action disclosure could not be made there. 

Limb (iii)(b) – Discretion

Even if it had jurisdiction, the court would have declined to exercise its discretion. The application was an attempt to circumvent the letter of request procedure and sought classes of documents which that procedure would not permit, contrary to the reservations made by Italy and the UK and so inconsistent with the comity of nations.