English court cannot compel pre-action disclosure from overseas

The primary basis on which the order was set aside was that the Gateway on which Mr Ebert had relied, Gateway 20, was not available. Gateway 20 provides the following.

• 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 [paragraph 3.1]

The “enactment” which was said to allow proceedings to be brought is s.33(2) Senior Courts Act 1981, which permits the High Court to grant orders for pre-action disclosure (that is, to order disclosure from a prospective defendant before the substantive claim has been issued).

Whether Gateway 20 was available therefore depended on the question whether s.33(2) was an enactment which allowed proceedings to be brought against an overseas party seeking documents located overseas. In Gorbachev v Guriev, the Court of Appeal had concluded that a third party located overseas could be compelled to produce documents when the documents themselves were located within the jurisdiction of England and Wales, but had expressly not decided this related point.

The answer is that s.33(2) does not allow such proceedings. There is a presumption in English statutory interpretation that legislation is not generally intended to have extraterritorial effect unless there are express words indicating otherwise, or it necessarily must have such effect by implication from the language, subject matter or history of the legislation in question. As a starting point, nothing in the wording of s.33(2) indicated an intention that it should have extraterritorial effect and so displace this presumption, nor was there any legislative purpose or context identified which would make it necessary to imply such an intention. 

It was also relevant context that the UK is a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (as is Italy). Article 23 provides the following: 

• A Contracting State may…declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

The UK (and Italy) have both made such a reservation.

This fact was relevant to understanding the intended reach of s.33(2). The court said it was a strong indicator that Parliament had not intended extraterritorial effect for s.33(2), it being unlikely Parliament would have intended to introduce a parallel process that would circumvent the Hague regime to which it had signed up.

Moreover, the Evidence (Proceedings in Other Jurisdictions) Act 1975 regulates incoming letters of request and contains a significant restriction that a person will not be required to give an equivalent to common law disclosure by stating what relevant documents are or have been in their possession, instead only being required to provide particular documents specified. It would be objectionable as a matter of international comity for the English court to purport to have broader powers for outgoing requests than it is prepared to exercise for incoming requests.

It was therefore clear that s.33(2) is not an enactment permitting proceedings to be brought against an overseas party for overseas documents. This meant that there was no available gateway for service out.

While the order for service out was set aside on the basis described above, the court went on to consider whether there was a serious issue to be tried on the merits of the application for pre-action disclosure.

The court said that this was not a case in which pre-action disclosure was desirable on the basis prescribed by the Civil Procedure Rules: it was not needed either to dispose fairly of the anticipated proceedings or to assist in resolving the dispute without a need for proceedings to be brought, nor would it save costs. On the contrary, it was possible for Mr Ebert to plead his claim against Ferrari without any further disclosure, and doing so would clarify the issues against which disclosure should be ordered.

Importantly, the categories of document sought by Mr Ebert were much too broad. Pre-action disclosure requires a carefully circumscribed list of documents, whereas Mr Ebert’s request was “very widely drawn” and amounted to an impermissible “fishing expedition”.

The court stressed both that pre-action disclosure is unusual, and that raising allegations of conspiracy, fraud or concealment is a serious matter. Such allegations must be clear and specific, with some evidential foundation, and an appropriately focussed request for disclosure. In this instance, the court said that “[d]eceit and conspiracy are identified as potential claims but without any supporting evidence or basis for inference.” Mr Ebert’s allegation of deliberate concealment, raised in response to a limitation argument from Ferrari, was described as “no more than bare assertion”.

There was therefore no serious issue to be tried on the merits of the pre-action disclosure application.

Again, while not necessary to dispose of the set-aside application, the court commented on the question of appropriate forum. It was not satisfied that England would be the appropriate forum. The only link to England was that Mr Ebert is resident here and says that he has incurred losses here. But the accident and criminal trial occurred in Hong Kong. The witnesses are based in Italy and Hong Kong. And the documents sought are in Italy.

Finally, as a matter of discretion, even if it did have jurisdiction to order service out, the court would not order service out of a third-party disclosure application where it is an inappropriate attempt to circumvent the letters of request regime.