In this article, Trinity's Richard Stubbs considers the judgment of O'Farrell J in Ebert v Ferrari S.p.A [2026] EWHC 2279 (TCC), handed down on 3 September 2026.
No Documents Abroad: The High Court Declines to Order Pre-Action Disclosure of Documents Located Outside the Jurisdiction in Ebert v Ferrari S.p.A [2026] EWHC 2279 (TCC)
Pre-action disclosure is an important tool for prospective claimants who want to see key documents before deciding whether, and how, to bring a claim. What has not previously been decided is whether the court can mandate the disclosure of documents held abroad by a respondent who is also abroad. In the first decision on the point, the High Court has held that section 33(2) of the Senior Courts Act 1981 does not empower the court to order a respondent located outside the jurisdiction to give pre-action disclosure of documents that are themselves located outside the jurisdiction.
Although Ebert was a Technology and Construction Court case, the issue is not confined to construction disputes. It could arise in any civil claim with a cross-border element, and the decision is therefore of wide application.
The statutory framework
The court's power to order pre-action disclosure derives from section 33(2) of the Senior Courts Act 1981 (the "SCA"). In summary, it allows the High Court, on the application of a person likely to be a party to subsequent proceedings, to order another person who is a likely party to those proceedings, to disclose whether documents relevant to an issue in the anticipated claim are in that person's possession, custody or power, and to produce them. The procedural machinery for such an application is contained in CPR 31.16.
That power can only be exercised where the court has jurisdiction over the respondent. A pre-action disclosure application is itself a claim giving rise to proceedings for the purposes of CPR 6.36, under which a claimant may serve a claim form out of the jurisdiction, with the court's permission, if one of the jurisdictional gateways in paragraph 3.1 of Practice Direction 6B is satisfied.
The gateway relied on by the claimant was paragraph 3.1(20) of PD 6B, which permits service out where a claim is made:
"under an enactment which allows proceedings to be brought and those proceedings are not covered by any of the other grounds referred to in this paragraph."
The question was whether section 33(2) SCA is an enactment of that kind for the purpose of an application concerning documents held abroad.
The facts
The claimant, a British citizen, lost control of a car manufactured by the defendant, an Italian company, in 2015. He was convicted in Hong Kong of causing death by dangerous driving after his defence of sudden intermittent brake failure was rejected at trial after expert evidence was heard. In 2021, the defendant issued a recall for brake-related defects affecting the same model.
The claimant sought pre-action disclosure under section 33(2) SCA and CPR 31.16 of documents held at the defendant's headquarters in Italy, and obtained the court's permission to serve the application on the defendant out of the jurisdiction. The defendant applied to set aside the permission order.
The issue
The central issue was whether section 33(2) SCA fell within the jurisdictional gateway in paragraph 3.1(20) of PD 6B in circumstances where both the respondent and the documents sought were located abroad.
O'Farrell J observed that, to fall within paragraph 3.1(20), the enactment under which the claim is brought must contemplate proceedings against a person outside the jurisdiction. The starting point was Gorbachev v Guriev [2022] EWCA Civ 1270, in which the Court of Appeal established that section 33(2) SCA permits a pre-action disclosure application against a respondent outside the jurisdiction in respect of documents located within the jurisdiction. Gorbachev, however, left open the very question raised in Ebert: whether the same is true where the documents themselves are located abroad.
The decision
O'Farrell J held that the principle of territoriality, the presumption that legislation is not intended to have extraterritorial effect, gave rise to a rebuttable presumption that section 33(2) SCA did not extend to documents located abroad. The presumption was not rebutted, for two reasons.
First, section 33(2) contained no express indication that Parliament intended to depart from the presumption, and it was not necessary to imply any such intention.
Second, the United Kingdom and Italy are both contracting states to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970, and each had declared that it would not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents. That mutual reservation strongly indicated that Parliament did not intend section 33(2) to operate extraterritorially in respect of documents held in another contracting state.
Because section 33(2) did not extend to documents located abroad, the application did not fall within the paragraph 3.1(20) gateway, and the court had no jurisdiction to order the pre-action disclosure sought. The permission order was set aside.
Comment
Subject to any appeal, Ebert draws a clear line for prospective claimants contemplating pre-action disclosure with a cross-border dimension. Gorbachev had already confirmed that a respondent's presence abroad is not, by itself, a bar: the court can order a foreign respondent to produce documents located within the jurisdiction. What Ebert now decides is that the location of the documents is the critical factor. Where the documents sought are held abroad, section 33(2) SCA does not reach them, and the paragraph 3.1(20) gateway is not engaged.
For practitioners, three points are worth drawing out:
- First, the analysis turns on the presumption against extraterritorial effect, so the reasoning is not peculiar to the TCC and will apply across civil litigation generally.
- Second, the Hague Evidence Convention reservations did real work in the decision: where both states are contracting parties that have declined to execute letters of request for pre-trial discovery, that is a strong indicator that Parliament did not intend the domestic disclosure power to cut across the Convention regime.
- Third, a prospective claimant who needs documents held overseas should think early about the proper route to them, whether through the Convention machinery, the foreign court, or by framing the substantive proceedings so that disclosure can be sought in the ordinary way once the claim is on foot, rather than assuming that section 33(2) will bridge the gap.
For now, the position is settled at first instance: pre-action disclosure under section 33(2) SCA stops at the water's edge when the documents themselves lie beyond it.
As well as being the Deputy Head of Chambers, part time Recorder and accredited Mediator, Richard is a member of Trinity's Employment, Business and Property, Insolvency and Sports Law teams. He is regularly recognised in the leading legal directories, recent entries include:
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