Written by Priya Patel Last Updated: 30 October, 2026Lessons from Ebert v Ferrari SpA [2026] EWHC 2279 (TCC)
AT A GLANCE
The issue: Could the English Court permit service out of an application seeking pre-action disclosure from Ferrari in Italy of documents held outside England and Wales?
The answer: No. Section 33(2) of the Senior Courts Act 1981 did not extend to proceedings against a party abroad concerning documents located abroad.
The practical point: In cross-border disputes, evidence strategy should be considered at the outset, alongside the merits of the claim.
Why Can Access to Evidence Become a Dispute in Its Own Right?
When clients first seek advice about a dispute, the natural focus is usually on the claim itself. Has a contract been breached? Has a director acted improperly? Has a shareholder been treated unfairly?
Before those questions can be answered, there is often a more practical issue: can the evidence needed to prove the claim actually be obtained?
That question becomes more difficult where the proposed defendant is based overseas and the documents are held in another jurisdiction. Ebert v Ferrari SpA [2026] EWHC 2279 (TCC) is a useful reminder that relevance alone is not enough. The English Court must also have jurisdiction to make the order sought.
The Background
The case arose from a fatal road traffic accident in Hong Kong on 9 June 2015 involving a Ferrari 458 Spider. Mr Robert Ebert maintained during the criminal proceedings that the vehicle’s brakes had suddenly failed. He was convicted of causing death by dangerous driving, and his appeal was dismissed.
On 28 October 2021, Ferrari issued a recall affecting certain vehicles, including the same model year as the vehicle driven by Mr Ebert. The recall referred to a braking-system defect that could cause brake-fluid leakage and a partial or total loss of braking capability.
“a braking system that could potentially leak brake fluid, which may lead to partial or total loss of braking capability” [Judgment, para 9]
Mr Ebert’s proposed claim was that the brake-related defects caused the accident and that Ferrari knew, or should have known, of them. Before issuing substantive proceedings, he sought pre-action disclosure of broad categories of material, including board minutes, internal investigations and communications relating to the braking issues, the recall and the evidence given at his criminal trial.
Ferrari is incorporated and headquartered in Italy. Its evidence was that any responsive documents would be held at its headquarters in Italy, in employees’ email accounts or devices in Italy, or on a cloud-based back-up server in the Netherlands.
What Is Pre-Action Disclosure?
Section 33(2) of the Senior Courts Act 1981 (‘SCA’) and CPR 31.16 give the Court a limited power to order disclosure before substantive proceedings have started. The procedure can assist where early disclosure would help dispose fairly of the anticipated proceedings, support settlement or save costs.
It is not, however, a general right to investigate whether a claim might exist. The proposed parties must be likely to be parties to later proceedings, the requested documents must fall within the likely scope of standard disclosure, and disclosure must be desirable for one of the purposes set out in CPR 31.16.
“In the commercial context, a pre-action disclosure order, even if not exceptional, is unusual.” [Judgment, para 76]
The Three-Stage Test for Service Outside the Jurisdiction
Because Ferrari was in Italy, Mr Ebert also had to justify service of the application outside England and Wales. Applying Gorbachev v Guriev [2023] KB 1 (CA), the Court considered whether:
- Mr Ebert had a good arguable case that the application fell within a jurisdictional gateway in paragraph 3.1 of Practice Direction 6B;
- there was a serious issue to be tried on the merits of the pre-action disclosure application; and
- England and Wales was clearly or distinctly the appropriate forum and the Court should exercise its discretion to permit service out.
Territoriality: The Central Issue
The central question was whether section 33(2) of the SCA allowed proceedings to be brought against a party outside the jurisdiction in respect of documents also located outside the jurisdiction.
The starting point was the principle of territoriality. Domestic legislation is presumed not to apply to persons and matters outside the territory to which it extends unless Parliament has expressed, or necessarily implied, a contrary intention.
“The principle, therefore, is that legislation does not generally apply to persons and matters outside the jurisdiction.” [Judgment, para 49]
The Court found no wording, purpose or context in section 33(2) of the SCA indicating that Parliament intended it to have the extra-territorial reach argued for by Mr Ebert.
KEY POINTS FROM THE JUDGMENT
Start with the statute. A procedural rule permitting service abroad cannot enlarge the substantive reach of the legislation on which the application depends.
The location of the documents matters. Gorbachev concerned documents held by solicitors in England. Here, both Ferrari and the documents were outside the jurisdiction.
Comity is not a technicality. The Court was concerned not to impose English disclosure standards on a foreign company holding evidence abroad.
Use the recognised international route. The judgment points parties towards letters of request and the Hague Evidence Convention rather than a unilateral English disclosure order.
A strong underlying case is not enough. Jurisdiction, the merits of the disclosure application, forum and discretion are separate requirements.
Why the Hague Evidence Convention Mattered
The United Kingdom and Italy are parties to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The Convention provides a letter-of-request procedure through which a court in one contracting state may seek assistance from the competent authority of another.
Both countries have made declarations under Article 23 concerning pre-trial discovery of documents. Against that background, the Court considered it inherently improbable that Parliament had intended section 33(2) of the SCA to create a parallel system which bypassed the authorities and safeguards of the state where the evidence was located.
“The letter of request regime is the proper, courteous, respectful method of obtaining evidence within a foreign jurisdiction from a foreign party.” [Judgment, para 58]
The practical message is not that overseas evidence can never be obtained. It is that parties must use the route that respects the legal system of the country in which the evidence is held.
Why Gorbachev Did Not Answer the Case
Mr Ebert relied on Gorbachev, where the Court of Appeal held that a disclosure application could be served on respondents abroad in relation to documents held by solicitors in England. However, the Court of Appeal had expressly left open the position where the documents themselves were outside the jurisdiction.
That distinction was decisive. In Gorbachev, the documents had been sent to English solicitors for advice about transactions connected with England. In Ebert, both Ferrari and the documents were abroad, with no special circumstances bringing them within the legislative reach of section 33(2) of the SCA.
The Additional Reasons the Application Failed
Although the jurisdictional finding was sufficient to dispose of the application, the Court also considered the remaining stages of the test.
1. The request was too wide
The proposed categories were not carefully confined or linked to a settled list of issues. The Court considered that they amounted to a fishing expedition.
“they are very widely drawn, not linked to any draft list of issues and amount to a fishing expedition.” [Judgment, para 81]
2. The proposed claim lacked sufficient definition
Mr Ebert could plead a claim without further disclosure, but the possible factual and legal bases had only been identified at a superficial level. The Court was not satisfied that pre-action disclosure would fairly dispose of the anticipated proceedings, assist settlement or save costs.
3. England was not clearly the appropriate forum
Mr Ebert lived in England and said that losses had been suffered here, but Ferrari and material witnesses were in Italy and Hong Kong. The accident, vehicle examination and criminal trial had taken place in Hong Kong, while the documents were held in Italy or the Netherlands.
4. The Court would have refused relief in any event
Even if jurisdiction had existed, the Court would have declined to exercise its discretion because the application sought to circumvent the letter-of-request regime and obtain broad classes of documents that would not be available through that procedure.
What Should Businesses and Their Lawyers Do?
- Identify the evidence early. Map the documents, data sources and likely custodians before proceedings are issued.
- Establish where the material is held. The place of incorporation, the location of employees and the physical or electronic location of documents may all matter.
- Separate relevance from jurisdiction. A document may be central to the dispute without the English Court having power to order its production.
- Define the proposed claim. Pre-action disclosure should not be used to search for a case. The likely causes of action, issues and document categories need to be focused.
- Consider international evidence routes. Where evidence is abroad, letters of request, the Hague Evidence Convention and local procedures should be considered at the outset.
- Preserve evidence immediately. Where there is a risk of deletion or loss, preservation steps should be addressed promptly, even if the route to production will take longer to resolve.
The Key Takeaway
Ebert v Ferrari is a reminder that having a potential claim and having access to the evidence needed to prove it are different things.
In cross-border disputes, the evidence-gathering plan should be considered at the same time as the merits, limitation, forum and enforcement. If the key documents are abroad, that may shape the claim from the very beginning.
“the solution, in an appropriate compelling case, would be to use, rather than to circumvent, the letter of request procedure” [Judgment, para 29]
Discussing a Cross-Border Dispute
Priya Patel, Senior Associate at Summit Law LLP, advises on commercial litigation, shareholder disputes, cross-border disputes, contractual claims, enforcement and asset recovery matters.
To discuss a matter, contact Priya at [email protected] or on +44 (0)20 7467 3993, or book a consultation.
Disclaimer
This article is intended for general information purposes only and should not be relied upon as legal advice. Specific legal advice should always be sought on the facts of any particular matter.
Source: Ebert v Ferrari SpA [2026] EWHC 2279 (TCC), approved judgment dated 3 September 2026.
