Background
Robert Ebert was convicted in Hong Kong of causing death by dangerous driving after losing control of a Ferrari 458 Spider in a 2015 crash that killed a security guard. Although speeding was undisputed, Ebert maintained that a sudden brake failure caused the accident. Ferrari personnel and other experts gave evidence about the braking system at his criminal trial, after which Ebert was imprisoned and ultimately deported to the United Kingdom.
Ferrari issued a 2021 recall covering certain vehicles, including the relevant model and production year, because a potential brake-fluid leak could cause partial or total loss of braking capability. Ebert proposed to claim that such defects caused his accident and that Ferrari knew or should have known about them, while Ferrari maintained that the recalled defect was not shown to have affected his vehicle and had no causal connection to the crash or conviction.
Ebert obtained an order permitting him to serve in Italy an application under section 33 of the Senior Courts Act 1981 and CPR 31.16 for pre-action disclosure. He sought broad categories of documents concerning Ferrari’s knowledge and investigation of braking issues, the recall, and evidence given at the criminal trial. Ferrari applied to set aside the service order, explaining that it was based in Italy and that any responsive documents would be stored in Italy or on a backup server in the Netherlands.
The Court’s Holding
Mrs Justice O’Farrell set aside the order permitting service out and held that the court lacked jurisdiction over the pre-action disclosure application. Properly construed in light of the presumption against extraterritorial legislation, section 33(2) does not authorize proceedings against a party outside England and Wales concerning documents located outside the jurisdiction. Ebert therefore could not bring the application within the statutory-claim gateway in paragraph 3.1(20) of Practice Direction 6B.
The court distinguished authority permitting disclosure against a foreign respondent where the documents themselves were held in England. Here, both Ferrari and the documents were abroad. The Hague Evidence Convention, Italy’s and the United Kingdom’s reservations concerning pre-trial discovery, and the established letter-of-request process reinforced the conclusion that Parliament did not intend section 33 to create a parallel means of compelling foreign disclosure.
The court also held that the remaining requirements for service out were not met. The disclosure request was broad, insufficiently tied to defined issues, and amounted to a fishing expedition; Ebert had not established a real prospect of success on the proposed substantive claim or a serious issue on the merits of the disclosure application. England and Wales was not clearly the appropriate forum, and even if jurisdiction existed, the court would have refused permission because the application sought to circumvent the letter-of-request regime.
Key Takeaways
- Section 33(2) of the Senior Courts Act 1981 does not permit pre-action disclosure proceedings against a foreign party for documents located outside England and Wales.
- A foreign respondent’s control over documents stored abroad does not itself overcome the territorial limit or establish the statutory jurisdictional gateway.
- Broad disclosure demands unsupported by clearly defined claims and issues may fail as fishing expeditions, independently of any jurisdictional defect.
- Courts will ordinarily require litigants seeking foreign evidence to respect the applicable letter-of-request framework and international limitations on pre-trial discovery.
Why It Matters
The judgment draws a clear territorial boundary around the English court’s pre-action disclosure power. It confirms that the procedural definition of a pre-action application as a “claim” is not enough: the underlying enactment must itself contemplate proceedings against the foreign respondent in the circumstances presented.
For cross-border disputes, parties cannot use CPR 31.16 to obtain broad classes of documents from a foreign company when both the company and the material are abroad. They must consider the forum with the closest connection and pursue evidence through internationally recognized procedures, subject to the requested state’s restrictions.