The London-born banker served 14 months and says his career was ruined by the crash
A top banker accusing Ferrari of a “cover up” over claims the brakes failed on his supercar leading to a fatal accident has lost his bid to sue for millions in the UK.
Robert Ebert was earning millions as head of equities for the Asia Pacific region at Deutsche Bank when he was convicted of causing death by dangerous driving and jailed in Hong Kong, after accidentally killing security guard Ku Lap-chi whilst driving to work in his Ferrari 458 Spider in June 2015.
Mr Ebert argued that the fatal accident was not his fault as his car’s brakes had failed, but expert evidence given in court by a Ferrari employee that brake failure was “impossible” was preferred by the Hong Kong judge to that given by the banker’s own expert.
The London-born banker served 14 months of a 22-month sentence and was deported on release and says his career was ruined by the incident.
Mr Ebert wants to sue the Italian supercar giants for millions, saying that thousands of Ferraris – including his own car – were subsequently recalled due to similar braking problems to that he claimed to have suffered.
But his bid to launch his case in the UK courts has been rejected after a top judge said that Hong Kong or Italy, where the supercar giants are based, is a more “appropriate forum for the trial”.
The banker’s lawyers had launched a pre-action bid in London’s High Court to force Ferrari to release documents he says will help him “to ascertain exactly what knowledge Ferrari had in relation to these issues at the time of Mr Ebert’s trial, with a view to bringing a claim against Ferrari.”
Setting out his case before Mrs Justice O’Farrell, his barrister Andrew Butler KC, said that he had lost a career which could have seen him earning a salary of up to $11m as a result of the conviction, which he blamed on an expert from Ferrari telling the trial judge that it was impossible his brakes had failed as he described.
“Even at the time of Mr Ebert’s conviction, there was, unbeknown to him, traffic on the Ferrari chat sites questioning the efficacy of the brakes on models such as the 458,” he said.
“In October 2021, Ferrari recalled certain models of vehicle including the 458 in the US as the result of a perceived fault in their braking systems.
“Then critically in 2022 they recalled over 2,000 vehicles in China, the recall covering the 458 and extending to vehicles imported between March 2010 and March 2019, again because of a perceived fault in their braking systems. The announcement referred to ‘a brake reservoir fluid cap which may not vent properly’.
“Mr Ebert’s vehicle was produced in February 2012 and so was one of those recalled.”
The barrister said that Mr Ebert was bringing the pre-action disclosure application in the UK to ascertain what Ferrari might have known about the issues at the time of the trial, with a view to bringing a claim against the company.
Tim Otty KC, for Ferrari, however claimed the former banker was trying to bypass the proper legal procedure and that applications for disclosure of evidence ought to be made in either Hong Kong or Italy, not London.
He told the judge: “Mr Ebert’s evidence in his criminal trial was that the accident was caused by a brake failure in the vehicle. A Ferrari employee, Mr Martino Casolari, gave evidence at the trial, at the request of the Hong Kong police, in relation to the vehicle’s braking system.
“The court did not accept Mr Ebert’s evidence. He was convicted and incarcerated for 14 months.
“Some years later, in October 2021, Ferrari issued a recall for certain classes of vehicle, including the class of Mr Ebert’s Vehicle, for brake-related defects.
“Mr Ebert alleges that the same brake-related defects caused the accident, that Ferrari knew or should have known of these alleged defects, and that (Ferrari’s expert) gave evidence at the trial which was false, misleading and/or negligent, leading ultimately to Mr Ebert’s conviction and various alleged consequential losses.
“Ferrari denies that the recall had any relevance to the accident or Mr Ebert’s conviction.
“The pre-action disclosure application represents an improper attempt to circumvent the letter of request procedure, which is the appropriate mechanism by which to obtain documents held abroad by a foreign respondent in accordance with the principles of international comity.
“The more appropriate course would be for Mr Ebert to issue proceedings and seek disclosure in either Hong Kong or Italy.”
Agreeing and rejecting his UK pre-action disclosure application, the judge said: “The court is not satisfied that in all the circumstances…England and Wales is clearly or distinctly the appropriate forum for the trial of the dispute”.
The judge added that the ex-banker’s “anticipated claim” that his car “suffered from braking defects that were the subject of the recall and there was a deliberate or inadvertent ‘cover up’ by Ferrari” is at the moment “very widely drawn”.
“I recognise that, without the documents, it is difficult for Mr Ebert to plead a particularised claim, but there has been no attempt to define, even in outline, the factual and legal basis of the putative claim,” he continued.
“Essential elements for any claim by Mr Ebert would be a plausible case, explaining how the accident was caused by intermittent braking defects found in the vehicle and the basis on which it is believed that Ferrari knew, or should have known, about the existence of such defects at the time of the accident.
“Pre-action disclosure in the context of commercial litigation is, if not exceptional, unusual. Raising serious allegations of conspiracy, fraud or concealment should not be used as a basis for pre-action disclosure unless the allegations are clear and specific, demonstrate some evidential foundation and the request for disclosure is appropriately focused. Deceit and conspiracy are identified as potential claims, but without any supporting evidence or basis for inference.
“Although Mr Ebert is resident in England and the losses to be claimed are said to be incurred in England, there is no other link to this jurisdiction. Ferrari and the material witnesses are based in Italy and Hong Kong.
“The documents of which disclosure is sought are not located in this jurisdiction, but in Italy.
“A more appropriate forum would be Hong Kong, where the fatal accident, examination of the scene and the vehicle, and the criminal trial took place.
“There is no evidence that an application for pre-action disclosure could not be made in that jurisdiction. The documents are not located in Hong Kong, but they are not located in England; therefore, that does not favour this jurisdiction.
“It is suggested that there is a real risk that justice would not be done in Hong Kong, but this case has no political overtones and no evidence has been produced to suggest any wider concerns regarding the quality of justice in commercial claims for damages.”
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