Ebert v Ferrari: Territoriality, International Comity and the Limits of Pre-Action Disclosure

The recent decision of O'Farrell J in Ebert v Ferrari S.p.A [2026] EWHC 2279 (TCC) provides significant guidance on the territorial limits of the English court's pre-action disclosure (PAD) jurisdiction and its relationship with established international mechanisms for obtaining evidence abroad.

Applying the framework identified by the Court of Appeal in Gorbachev v Guriev [2023] EWCA Civ 327, the court considered whether a PAD application could be served out of the jurisdiction where both the respondent and the documents sought were located overseas.

The case engaged the familiar three-stage test governing service out: (i) whether the claim falls within a jurisdictional gateway; (ii) whether there is a serious issue to be tried; and (iii) whether England & Wales is clearly or distinctly the appropriate forum. The judgment resolves an issue left open in Gorbachev by holding that s.33 of the Senior Courts Act 1981 does not authorise PAD against a foreign respondent in respect of documents situated abroad.

Background

The application arose from a fatal road traffic accident in Hong Kong in 2015. Mr Ebert was driving a Ferrari 458 Spider which left the road and struck a pedestrian, who subsequently died. He was later convicted of causing death by dangerous driving. Several years later Ferrari announced a recall affecting certain Ferrari 458 Spider vehicles due to braking defects capable of causing partial or complete braking failure. Mr Ebert alleged that similar defects may have affected his vehicle and sought disclosure concerning Ferrari's knowledge of those defects, together with evidence provided by Ferrari personnel during the criminal proceedings. 

The documents sought included internal investigations, board materials, recall documentation and communications with third parties. Permission to serve the PAD application in Italy was initially granted, but Ferrari subsequently challenged jurisdiction and sought to set aside the order for service out.

The Jurisdictional Gateway

The principal issue was whether the application fell within paragraph 3.1(20) of PD 6B, which applies where proceedings are brought under an enactment allowing such proceedings and no other jurisdictional gateway is available. Mr Ebert relied on s.33 of the Senior Courts Act 1981.

Following Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, the court approached the question as one of statutory construction. The issue was whether s.33, properly interpreted, authorises proceedings against a foreign respondent in respect of documents held outside England & Wales.

O'Farrell J's analysis started from the presumption that statues do not have extraterritorial effect in the absence of clear parliamentary intention. Drawing on authorities including R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, R (Marouf) v Secretary of State for the Home Department [2023] UKSC 23 and Gorbachev, she found no indication, express or implied, that Parliament intended s.33 to confer a power to compel overseas disclosure from foreign respondents.

Particular significance was attached to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970. The UK and Italy have both entered Article 23 reservations restricting broad common law-style pre-trial discovery. The court viewed the Convention framework as a strong indication that Parliament cannot have intended s.33 to provide an alternative unilateral route to obtain evidence abroad.

This aspect of the judgment is noteworthy. The reasoning did not depend solely on the absence of extraterritorial language. Instead, the existence of an internationally recognised framework governing cross-border evidence-gathering played an important role. In this respect, the decision echoes the Supreme Court's reasoning in R (KBR Inc) v Director of the Serious Fraud Office [2021] UKSC 2, where established mechanisms of international cooperation were treated as a reason for resisting an expansive interpretation of domestic powers with overseas effects.

The court also distinguished Gorbachev. In that case, although the respondents were abroad, the documents sought were located within England & Wales in the possession of English solicitors. In Ebert, both the respondent and the documents were overseas. The territorial connection that supported jurisdiction in Gorbachev was therefore absent. Nothing turned on Gorbachev relating to s34 of the Act (PAD against a foreign third party) and the instant case concerning s33 (PAD against a foreign potential defendant).

The judgment nevertheless leaves open an important practical question: how document location should be determined in an era of multinational data storage and cloud-based systems. Future cases may need to consider whether physical location remains an adequate organising principle for defining the territorial reach of PAD.

Serious Issue to be Tried

Although unnecessary in light of its conclusion on the jurisdictional gateway, the court also considered the remaining elements of the Gorbachev test.

The court accepted that Ferrari and Mr Ebert were likely to be parties to future proceedings and that at least some of the requested materials might ultimately fall within standard disclosure, CPR 31.16(3)(a)-(c). However, the application failed to satisfy CPR 31.16(3)(d), which requires disclosure to be desirable for the fair disposal of anticipated proceedings, to assist resolution or to save costs.

Central to the court's reasoning was the fact that Mr Ebert remained able to formulate a substantive claim without the disclosure sought. O'Farrell J was also critical of both the breadth of the requests and the speculative nature of the proposed claims. Allegations of deceit, conspiracy and deliberate concealment lacked sufficient evidential support, while the application failed adequately to demonstrate a link between the recalled defects and the accident itself or Ferrari's knowledge at the relevant time. The application therefore bore the hallmarks of a fishing expedition.

The judgment reinforces the established principle that PAD is an exceptional remedy. It is not intended to enable a claimant to investigate whether a cause of action exists but to facilitate the fair resolution of claims capable of being properly pleaded. While doctrinally orthodox, this approach may present difficulties in complex product liability disputes, where evidence relevant to defect and knowledge is often exclusively within the manufacturer's control.

Forum Conveniens

The court also held that England & Wales was not clearly the appropriate forum. Ferrari was domiciled in Italy, the relevant documents were located abroad, and the accident, vehicle inspections and criminal proceedings all occurred in Hong Kong. Hong Kong was therefore the natural forum for any substantive dispute arising from those events.

Furthermore, even if jurisdiction had existed, O'Farrell J indicated that the court would have declined to exercise it. Consistent with observations in Nix v Emerdata Ltd [2022] EWHC 718 (Comm) and Gorbachev, the application was viewed as an attempt to circumvent recognised international procedures for obtaining evidence abroad. The fact that both relevant jurisdictions had entered Article 23 reservations under the Hague Convention strengthened that conclusion.

Conclusion

Ebert is likely to become a leading authority on the limits of cross-border pre-action disclosure following Gorbachev. Although formally concerned with s.33 of the Senior Courts Act 1981 and the service-out gateway, its broader significance lies in its robust reaffirmation of territorial restraint and international comity as principles informing the interpretation of English procedural powers.

Perhaps the most important aspect of the decision is its treatment of the Hague Evidence Convention as an interpretive consideration rather than merely an alternative procedural mechanism. The judgment suggests that where Parliament has endorsed a framework of international judicial cooperation, courts will be reluctant to infer parallel domestic powers capable of undermining or bypassing that framework.

From a policy perspective, Ebert forms part of a broader judicial trend limiting the extraterritorial reach of English investigatory and procedural powers unless Parliament has spoken in clear terms. While that approach promotes certainty, predictability and respect for foreign sovereignty, it may also reduce the practical utility of PAD in multinational disputes where key evidence is located abroad.

For practitioners, however, the message is clear: where both the respondent and the documents sought are located overseas, Hague Convention procedures and other recognised mechanisms of international judicial assistance are likely to be the primary route to obtaining evidence. Attempts to secure the same result through PAD will face substantial jurisdictional and discretionary obstacles.