Robert Ebert v Ferrari SpA

An application for pre-action disclosure cannot be served out of the jurisdiction against a foreign respondent for documents located abroad unless the statutory language expressly or by necessary implication has that reach. The territoriality principle, international comity and the Hague Convention make such an implication unlikely. A pre-action disclosure application is a claim giving rise to proceedings for service-out purposes, but that classification alone does not establish the jurisdictional gateway. The applicant must also show a serious issue to be tried, an appropriate forum and a proper case for exercising discretion. Requests must be focused and supported by a sufficiently articulated claim. Broad, speculative requests amount to a fishing expedition. The letter-of-request procedure is the proper route for evidence abroad.

Mr Ebert sought pre-action disclosure from Ferrari concerning alleged brake defects in a Ferrari 458 Spider, a subsequent recall and evidence given during criminal proceedings in Hong Kong following a fatal accident. The application was made under section 33(2) of the Senior Courts Act 1981 and CPR 31.16.

Waksman J granted permission to serve the application on Ferrari in Italy. Ferrari applied under CPR 23.10 to set aside that order. The central issues were whether the statutory power and the service-out gateway applied to documents located outside England and Wales, whether the application raised a serious issue to be tried, whether England and Wales was the appropriate forum, and whether permission should be granted in the court’s discretion.

Ferrari’s application was granted. The Service Order was set aside, and the court declared that it had no jurisdiction in relation to the pre-action disclosure application and/or would not exercise it.

1. Applicable test. On an application to set aside an order for service out, the applicant must show that permission was properly available. The three-limb test required a good arguable case that the application fell within a jurisdictional gateway, a serious issue to be tried on the merits, and that England and Wales was clearly or distinctly the appropriate forum and that discretion should be exercised in favour of service. A legal question going to the existence of jurisdiction was determined as a question of law.
2. Jurisdictional gateway. The court held that a pre-action disclosure application was a claim giving rise to proceedings for CPR Part 6 and paragraph 3.1(20) of Practice Direction 6B. That was necessary but insufficient. On a true construction, section 33(2) of the Senior Courts Act 1981 contained no express or necessary implication extending the power to a foreign respondent in respect of documents abroad. The territoriality principle, international comity, the Hague Convention and the statutory letter-of-request regime made a parallel unilateral system inherently improbable. The court distinguished Gorbachev v Guriev [2023] KB 1, where the documents were held in England and the relevant parties had rendered the matter subject to the jurisdiction.
3. Merits. Although both parties were likely to be parties to later proceedings and some documents might fall within standard disclosure, pre-action disclosure was not desirable. Mr Ebert could plead without further disclosure. The requests were wide, insufficiently focused, disconnected from identified issues and amounted to a fishing expedition. The proposed allegations concerning causation, knowledge, deceit, conspiracy and concealment lacked sufficient factual detail and evidential foundation. There was therefore no serious issue to be tried on the application.
4. Forum and discretion. Mr Ebert’s residence and alleged losses in England were insufficient. Ferrari and material witnesses were in Italy and Hong Kong, and the documents were in Italy. Hong Kong was a more appropriate forum. In any event, the application attempted to circumvent the letter-of-request procedure and sought classes of documents that procedure would not permit. Even an exceptional merits case would not outweigh the considerations of comity.
5. Orders. Ferrari was entitled to the setting-aside order and declaration. Consequential matters, including costs and any application for permission to appeal, were reserved.

1. High Court: Waksman J granted permission on 5 September 2025 to serve the pre-action disclosure application on Ferrari in Italy.
2. High Court: Joanna Smith J extended Ferrari’s time to apply to set aside the Service Order.
3. High Court (Technology and Construction Court): Mrs Justice O’Farrell set aside the Service Order and granted Ferrari’s application.