Robert Ebert v Ferrari SpA

The Court’s decision arose from an application for pre-action disclosure against Ferrari in respect of various categories of documents held abroad. The principal issue was whether, applying the principle of territoriality and having regard to considerations of international law and comity, the Court has the power, or should exercise any power, to make an order for pre-action disclosure pursuant to section 33 of the Senior Courts Act 1981 (“the SCA”) against a proposed defendant outside the jurisdiction, in respect of documents located outside the jurisdiction.

The Court held that, properly construed in accordance with the principle of territoriality, s.33 of the SCA did not permit the Court to make an order for pre-action disclosure against a foreign defendant in respect of documents located abroad. The Court further held that (i) there was in any event no serious issue to be tried on the merits of the application; and (ii) even if the Court had the power to order pre-action disclosure, it would be inappropriate to do so, on the basis that the application represented an attempt to circumvent the letter of request procedure and the order sought “would be inconsistent with the comity of nations and the established rules of international law”.

Tim Otty KC and Rayan Fakhoury acted for Ferrari, instructed by Osborne Clarke LLP.

The judgment may be found here.