The High Court has held that it had no jurisdiction to permit an application for pre-action disclosure to be served on a respondent outside England and Wales in respect of documents held outside the jurisdiction: Ebert v Ferrari S.p.A [2026] EWHC 2279 (TCC).
The decision contrasts with Gorbachev v Guriev [2022] EWCA Civ 1270 (considered here) in which the Court of Appeal permitted an application for third party disclosure to be served on a respondent outside the jurisdiction, in circumstances where the documents sought were located in England. The court in the present case distinguished that decision, noting that it had expressly left open the question of the court's jurisdiction where the documents, as well as the respondent, were held abroad.
The present decision suggests that the courts are unlikely to permit an application for pre-action disclosure or third party disclosure to be served on a respondent abroad where the documents are also held abroad. In those circumstances, the party seeking the documents may wish to consider applying to the court to issue a letter of request for the assistance of the relevant foreign court in obtaining them, either under the Hague Taking of Evidence Convention 1970 or its common law powers.
Background
Mr Ebert, a British citizen living and working in Hong Kong, was involved in a fatal traffic accident while driving a vehicle manufactured by Ferrari. He was convicted for dangerous driving and served 14 months in prison. A technical engineer employed by Ferrari was called as a witness for the prosecution.
Ferrari later issued a recall notice for certain classes of vehicle, including the model driven by Mr Ebert. He asserted a potential claim against Ferrari on the basis that the defects which led to the recall notice had caused the accident which led to his conviction, that Ferrari knew or should have known of the defects, and that its engineer had given evidence that was deliberately false, misleading and/or negligent, resulting in his conviction and substantial consequential losses.
Mr Ebert issued an application against Ferrari in the English court for pre-action disclosure under CPR 31.16. He was granted permission to serve the application on Ferrari out of the jurisdiction at its address in Italy. Ferrari applied to set aside the order granting permission.
Decision
The High Court (O'Farrell J) granted the order to set aside, finding that the court did not have jurisdiction to permit the application to be served out of the jurisdiction.
The key issue was whether the application for third party disclosure fell within jurisdictional gateway (20) at para.3.1 of Practice Direction 6B, namely a claim made "under an enactment which allows proceedings to be brought". The "enactment" relied on was s.33(2) of the Senior Courts Act 1981 (SCA), which enables the court to make orders for pre-action disclosure and is given effect by CPR 31.16.
The court noted that, as explained by the Court of Appeal in Orexim Trading Ltd v Mahavir Port and Terminal Pte Ltd [2018] EWCA Civ 1660, for a claim to fall within gateway (20) the relevant enactment must, on its true construction, contemplate proceedings against persons who are not within the jurisdiction. The issue in dispute here was whether s.33(2) allowed proceedings to be brought against a party out of the jurisdiction in respect of documents located outside the jurisdiction.
The starting point in the court's analysis was the principle of territoriality, under which legislation is presumed not to apply to persons and matters outside the United Kingdom unless the contrary intention appears. On a natural and ordinary reading of s.33(2), the court said, there was no express indication that Parliament intended to depart from that presumption, nor had any legislative purpose or context been identified that would give rise to such an intention by necessary implication.
In construing s.33(2), it was particularly significant that there are parallel processes for international assistance in relation to evidence and documents outside the jurisdiction, including the Hague Taking of Evidence Convention to which the UK and Italy are both parties. Both the UK and Italy had also made declarations under that Convention to the effect that they would not execute letters of request for the purpose of obtaining "pre-trial discovery", ie which required a person to state what relevant documents were or had been in their possession or to produce anything beyond particular documents identified in the letter of request as likely to be in their possession, custody or power. The UK's declaration to that effect was also reflected in restrictions under the Evidence (Proceedings in Other Jurisdictions) Act 1975, which regulates incoming letters of requests from courts outside the jurisdiction.
The court held that the Hague Convention and the declarations made under it were "strong indicators" that Parliament did not intend s.33(2) to have extra-territorial effect. Further, as domestic legislation had restricted the court's power to give effect to incoming letters of request under the 1975 Act, it:
"would be objectionable in terms of international comity for the courts to define a broader scope for their powers to order documents or other evidence outside the jurisdiction, particularly orders which excluded the involvement of the other sovereign state".
Further, on a practical level, it would be futile for Parliament to assert its authority over those outside the jurisdiction where the relevant foreign state would not recognise such authority or assist in enforcement. The court considered that Italy's approach to a foreign order for pre-action disclosure was unlikely to be favourable, in light of its declaration under the Hague Taking of Evidence Convention.
The court rejected Mr Ebert's submission that the Court of Appeal's decision in Gorbachev (referred to above) had settled the law in his favour. That case dealt with documents which had been sent to England and therefore been rendered subject to the court's jurisdiction. Accordingly, any presumption against extra-territoriality had less force. That case had expressly left open the question of documents outside the jurisdiction.
The court also rejected the suggestion that it should accept jurisdiction and leave the question of whether any documents were within the jurisdiction to be dealt with on the pre-action disclosure application. That would amount to using the pre-action disclosure application procedure to determine whether any of the documents were within the jurisdiction, in circumstances where the court would not otherwise have power to order service out. The onus was on Mr Ebert to demonstrate that there were, or were likely to be, documents within the jurisdiction if he wished to rely on that factor to bring the matter within the scope of s.33(2).
In any event, the court did not consider that there was a serious issue to be tried on the merits of the pre-action disclosure application in this case, or that England and Wales was the appropriate forum for it to be heard.
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