Access granted: key implications of the new PD 51ZH (Access to Public Domain Documents pilot)

Reproduced from Practical Law with the permission of the publishers. For further information visit www.practicallaw.com

A new pilot scheme, Practice Direction (PD) 51ZH, commencing next year, has been developed by a sub-committee of the Civil Procedure Rule Committee (CPRC) to assist non-parties’ access to court documents.  

Background 

Part 5.4C of the Civil Procedure Rules (CPR) governs access of non-parties, those not a named party in the case, to documents from court records. The general rule is that a non-party can obtain statements of case and judgments or orders made in public without the court’s permission. But other documents filed at court can only be obtained with the court’s permission.

In Cape Intermediate Holdings Limited v Dring [2019], the Supreme Court held that the default position was that the public should also be permitted access to parties’ submissions and other documents placed before and referred to during a court hearing. However, this was inconsistent with CPR 5.4C. Lady Hale stated: “The default position should be to grant access to documents placed before a judge and referred to by a party at trial unless there was a good reason not to do so. It should not be limited by what the judge has chosen to read” and urged “the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case”. This led to a consultation by the CPRC. 

New pilot scheme 

On 20 October 2025, a pilot scheme was announced which would last two years, from 1 January 2026 to 31 December 2027. It will be implemented via PD 51ZH. 

For now, the Pilot will only apply to the Commercial Court (including the London Circuit Commercial Court) and the Financial List (Commercial Court and Chancery Division).

When will the pilot apply? 

The Pilot will apply to certain documents filed for or used in hearings taking place in public during the pilot period, in both new and existing proceedings. It will not apply to litigants in person or hearings heard in private.

The Pilot defines a wide scope of documents as “Public Domain Documents” including:

• Skeleton arguments and written opening and closing submissions, and other written submissions provided to a judge and relied on in a hearing
• Witness statements and affidavits (but excluding exhibits)
• Expert reports (including appendices)
• Any other document “critical to the understanding of the hearing” ordered by the judge at the hearing to be a Public Domain Document
• Any documents agreed by the parties. 

Where a document is a Public Domain Document, the party which produced it must file it with the court via a public facing area of CE File. This must be done two clear days after the start of the hearing for skeleton arguments, written and closing submissions. For other documents, the document must be filed before 4pm on the 14th day after the document was used at a hearing.

After being filed, the documents will be able to be accessed by non-parties via a public interface on CE File.  

Exceptions and filing modification orders 

In certain circumstances, the court may make an order:

• That a non-party may not obtain a copy of a Public Domain Document.
• Waiving or restricting the requirement of a party to file a Public Domain Document.
• That filing only needs to be complied with after the Public Domain Document has been redacted or edited.

It can also alter the timescale for filing a document or make such other order in respect of that document as it thinks fit. 

This will be known as a “Filing Modification Order”(FMO). A party seeking such an order must do so as soon as reasonably practicable and before the document needs to be filed. A non-party named in a Public Domain Document is also able to seek an FMO. It is expected that the court will need a good reason to grant an FMO, and a party’s subjective view that its document is confidential may not be sufficient. Currently, the PD and accompanying Guidance Note do not provide any specific guidance or criteria on when a FMO will be granted however, save that “confidential material” is referred to as an example.

The Pilot also provides a mechanism where non-parties can challenge an FMO for example, where a non-party is dissatisfied with the scope of redactions permitted.  

Compliance

Given the Pilot does not apply to unrepresented parties, non-compliance is not anticipated to be a significant issue. However, where a party fails to file a Public Domain Document and has not sought an FMO, the court may order them to do so.  This would be subject to the usual sanction of contempt of court if not complied with.

Potential concerns for parties 

The Pilot will present publicity and confidentiality concerns to some parties, as well as potential uncertainty about what a judge may consider in each case as "critical to the understanding of the hearing" and order to be filed. It is anticipated a lot of time could be spent at hearings in relation to FMOs, or arguments about whether a document should be a Public Domain Document.

Seeking legal advice on the Pilot may also lead to an increase in legal costs. A party wishing to prevent non-parties accessing documents will need to take positive steps to obtain an FMO.

In some instances, it may lead to parties avoiding litigation in England and Wales and instead pursuing arbitration or litigating in a different jurisdiction.

Expert witnesses may also be concerned as their reports are more likely to be publicly available and potentially open to wider scrutiny.

Comment

The Pilot will shift the current position, allowing non-parties to access a wider range of documents by default, rather than having to obtain the court’s permission.

It is expected that the Pilot will be extended to other courts in the future (most likely other Business and Property Courts jurisdictions initially). It is anticipated however that it may (if extended) be subject to restrictions in some areas of law such as in personal injury cases where expert reports may contain highly sensitive personal information.

The Pilot will be welcomed by those in favour of furthering open justice. The rules of the Pilot are however less extensive than those proposed by the CPRC following the consultation last year which would have allowed the public access to some documents, before they were used at a hearing and potentially even if they were not used. 

Related item: Consultation on non-parties having increased access to documents filed at court