The Technology and Construction Court has clarified an important question concerning the limits of pre-action disclosure in cross-border disputes. In Ebert v Ferrari S.p.A [2026] EWHC 2279 (TCC), the court considered whether it could require a respondent based outside England and Wales to disclose documents also held overseas.
The question had previously been left unresolved by the Court of Appeal in Gorbachev v Guriev. In Ebert, the court concluded that its powers did not extend to ordering pre-action disclosure in these circumstances.
The judgment provides useful guidance for practitioners dealing with international disputes, particularly where prospective defendants and relevant evidence are located in different jurisdictions.
Background to the dispute
The proceedings arose from a fatal road accident in Hong Kong in 2015, involving a Ferrari 458 Spider driven by Mr Ebert. A security guard was killed in the collision, and Mr Ebert subsequently served 14 months in prison after being convicted of causing death by dangerous driving.
Although it was accepted that Mr Ebert had been speeding shortly before the accident, his defence at trial was that the vehicle had suffered a sudden brake failure. A Ferrari engineer gave evidence for the prosecution that the mechanical failure described by Mr Ebert was not possible.
In 2021, Ferrari recalled certain vehicles, including 458 Spiders manufactured in the same year as Mr Ebert's car, because of a potential braking system defect that could result in brake fluid leakage and a partial or complete loss of braking capability.
Mr Ebert subsequently considered bringing proceedings on the basis that the alleged defect had caused the accident and that the evidence given at his criminal trial had been false, misleading or negligent.
To investigate his potential claim, he obtained permission to serve an application for pre-action disclosure on Ferrari in Italy, relying on section 33(2) of the Senior Courts Act 1981 and CPR 31.16.
Ferrari challenged that permission, arguing that the English court had no power to authorise service of such an application outside the jurisdiction when the documents sought were also located abroad.
The limits of the court's jurisdiction
The central question was whether the application fell within the jurisdictional gateway for service outside England and Wales under paragraph 3.1(20) of Practice Direction 6B.
In considering the issue, the court examined the principles governing the territorial reach of English legislation and the relationship between domestic disclosure powers and international legal cooperation.
The starting point was the presumption against extraterritorial application. Unless Parliament has indicated otherwise, legislation is generally presumed not to apply to people or matters outside the territory for which it was enacted.
The court found nothing in section 33(2) of the Senior Courts Act 1981 sufficient to displace that presumption.
An equally important consideration was international comity: the principle that courts should respect the sovereignty and legal procedures of other states.
Both the United Kingdom and Italy are parties to the Hague Evidence Convention. Both have made declarations under Article 23 declining to execute letters of request for pre-trial discovery of documents. The Convention also places limitations on requests for broad categories of documents, requiring sufficient specificity.
The court considered these arrangements significant. They indicated that Parliament could not have intended section 33(2) to provide a means of obtaining overseas disclosure that would bypass established international procedures.
The judgment also distinguished the earlier decision in Gorbachev v Guriev. Although the respondent in that case was outside the jurisdiction, the documents were held by solicitors within England and Wales. In Ebert, both the respondent and the documents were located overseas.
The court therefore concluded that the application could not proceed through the relevant jurisdictional gateway.
Was there a sufficient basis for disclosure?
Although its finding on jurisdiction was sufficient to dispose of the application, the court also considered whether the other requirements for service outside the jurisdiction had been satisfied.
It concluded that Mr Ebert had not established a serious issue to be tried.
The proposed claim had not been articulated with sufficient clarity, while the documents requested covered broad categories of material. The court considered the application to be an attempt to investigate whether a claim might exist, rather than to obtain documents necessary for an identifiable prospective claim.
Importantly, Mr Ebert could have pleaded a claim without obtaining further disclosure.
The judgment reinforces the distinction between legitimate pre-action disclosure and an impermissible fishing expedition. Applications seeking extensive documents in commercial disputes require a clear evidential foundation, particularly where allegations of concealment or conspiracy are advanced.
Was England the appropriate forum?
The court also examined whether England and Wales was the appropriate jurisdiction in which to pursue the application.
It concluded that Hong Kong had a stronger connection to the dispute, given that the accident and subsequent criminal proceedings had taken place there.
There was also no evidence demonstrating that Mr Ebert would be unable to seek pre-action disclosure through the Hong Kong courts.
Even if the English court had possessed jurisdiction, it would therefore have declined to exercise its discretion in favour of the application.
The court further considered that granting the order would undermine the procedures established by the Hague Evidence Convention. The application sought broad classes of documents that would not be obtainable through the relevant international mechanisms, making the proposed approach inconsistent with the principle of comity.
What does the judgment mean for practitioners?
The decision provides an important reminder that the availability of pre-action disclosure depends not only on the nature of the prospective claim but also on the location of the respondent and the documents sought.
Solicitors advising on international disputes should consider these jurisdictional questions at an early stage, rather than assuming that prospective litigation in England and Wales will provide access to documents held overseas.
Where both the respondent and the relevant material are outside the jurisdiction, practitioners may need to explore disclosure procedures in the country where the evidence is located, together with any applicable international cooperation mechanisms.
The judgment also underlines the importance of clearly identifying the proposed cause of action and ensuring that requests for disclosure are sufficiently focused and supported by evidence.
Ultimately, Ebert demonstrates that English pre-action disclosure powers cannot be used to circumvent the territorial limits of domestic legislation or the restrictions imposed by international legal arrangements.
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