A new direction for transparency – public access to court documents

This article was co-authored by Gabriella Piccioni, trainee solicitor.

A new pilot scheme, which came into force on 1 January 2026, has introduced rules for public access to court documents in the Commercial Court (including the London Circuit Commercial Court) and Financial List. The pilot scheme, governed by Practice Direction 51ZH - Access to Public Domain Documents Pilot (“Pilot Scheme” / “PD 51ZH”), will initially run for two years with a review after six months.

Aims of the Pilot Scheme

The Pilot Scheme has been introduced to widen public access to court documents.  This has been an objective of the Civil Procedure Rule Committee since the Supreme Court ruling in Cape Intermediate Holdings Ltd v Dring [2019]. The overarching aim of the Pilot Scheme is to advance open justice in the civil courts. Should the anticipated six month review prove successful, the Pilot Scheme is expected to expand to other business and property courts across England & Wales.

Key features

Under CPR 5.4C, a non-party can access only a limited number of documents without the court’s permission and without notice being given to the parties. These generally accessible documents include statements of case (excluding any attached documents) and orders or judgments that have been made on a public basis. Whilst the court has discretion to grant non-parties access to certain other documents (such as expert reports, skeleton arguments, documents attached to a statement of case, and witness statements), the requesting non-party must either file an application notice or a written request, and pay the prescribed court fee.

PD 51ZH is set to significantly alter this approach in the pilot courts. Pursuant to the Pilot Scheme, “Public Domain Documents” are required to be uploaded to the public-facing section of CE-File by the party which has produced the documents. Public Domain Documents are:

• skeleton arguments
• written opening and closing submissions
• other written submissions provided to a judge and relied upon in the hearing
• witness statements and affidavits (excluding annexes and appendices)
• expert reports (including annexes and appendices)
• any other document “critical to the understanding” of the hearing ordered by the judge to be a Public Domain Document
• any documents agreed by the parties to be Public Domain Documents.

Crucially, and in contrast to the provisions of CPR 5.4C, Public Domain Documents will be accessible by default by non-parties with no requirement to obtain court permission. The Pilot Scheme will only apply to public hearings and to documents that have already been filed on CE-File in advance of hearings from 1 January 2026.

Filing Modification Orders

Parties wishing to withhold or redact certain Public Domain Documents are able to request a Filing Modification Order (“FMO”). An FMO may also be requested by a non-party named or referred to in a Public Domain Document, or made by the court on its own initiative.

Whilst we anticipate that FMOs will likely be sought on grounds of confidentiality, the court’s willingness to grant such exemptions remain to be seen. The court guidance note describes the process as relatively informal, whereby parties submit a written request and proposed order to CE-File. Non-parties and parties that are applying retrospectively, where the document is already a Public Domain Document, will have to submit a formal application under CPR 23.

Comment

PD 51ZH signifies an important shift towards increased transparency and accessibility within the legal landscape.

Whilst the Pilot Scheme is intended to enhance the fundamental principle of open justice rather than create an additional burden, it generates an added consideration for those contemplating litigation given that the documents will be publicly available to the media and competitors. The Pilot Scheme has the potential to reshape how parties approach and handle litigation, potentially leading to increased utilisation of alternative dispute resolution methods and pre-hearing settlements for those parties prioritising protecting their privacy while resolving a dispute.

Although the Pilot Scheme is at an early stage, it will likely be extended across the business and property courts in due course. Parties will accordingly need to take a more proactive approach to identifying commercially sensitive or confidential material at the outset of litigation, and give earlier consideration to whether protective measures, such as an FMO, may be necessary.

Being prepared for the increased visibility of court documents will help mitigate reputational, commercial and privacy risks.