Increased public access to court documents

Key points

From 1 January 2026, a two-year pilot scheme will run in the Commercial Court, London Circuit Commercial Court of the King's Bench Division, and the Financial List, introducing default access for non-parties to a wide range of documents used in interim hearings and at trial. This marks a significant shift from the current position, where non-parties must apply to the court and justify their request for access (other than for statements of case and judgments).

The pilot scheme seeks to promote open justice by making court documents more easily accessible by the public.

The new scheme significantly increases the risk that client-sensitive information may become publicly accessible.

What is happening?

Practice Direction 51ZH - Access to Public Domain Documents (PD 51ZH) – effective from 1 January.

PD 51ZH introduces a two-year pilot scheme, allowing non-parties default access to a wide range of Court documents in the Commercial Court and London Circuit Commercial Court of the King's Bench Division, as well as the Financial List. It applies to both existing and new proceedings.

Unless otherwise ordered, non-parties can access Public Domain Documents, including:

• Skeleton arguments and written submissions provided to a judge and relied on in the hearing
• Witness statements and affidavits (but not exhibits or appendices)
• Expert reports (including annexes and appendices)
• Any other documents deemed "critical to the understanding of the hearing" (as ordered by the judge)
• Any document agreed by the parties to be a Public Domain Document.

PD51ZH applies to all public hearings, including interim applications and trials but does not apply to:

• Hearings conducted in private
• Hearings involving litigants in person who have not used the CE-File system before
• Documents read by the judge in private (unless deemed "critical to the understanding of the hearing")
• Documents covered by confidentiality and anonymity orders under CPR 39.2.
• Applications under the Arbitration Act 1996 (s45) and (s69) when held in public.

How will it work?

Where PD 51ZH applies the party that has produced a Public Domain Document must file it on the public facing side of the electronic court file (CE-File) as well as the normal CE-File system. If a party fails to comply with the filing requirement and has not sought a Filing Modification Order (FMO) (see below), the court can order it to do so. Once filed, anyone (including journalists and business competitors) can access the documents for a nominal fee of £11.

Parties ability to restrict access to a Public Domain Document

Where there are confidentiality concerns and a party wants to restrict access to a document or part of it (i.e. with redactions), they will have to seek an FMO from the Court. The court may also make an FMO on its own initiative, or on an application by any party or non-party named or referred to in a Public Domain Document. Although PD 51ZH does not set out a specific test for making an FMO HMCTS Guidance states that the circumstances in which "it would not be appropriate to make the documents available will be rare".

It is unclear whether parties should use FMOs for redacting personal data (for example, signatures and personal addresses) to address data privacy and security concerns. We understand this issue has been raised with the Civil Procedure Rule Committee for further clarification. Recent case law indicates that the courts are already concerned with excessive use of redactions. Parties may need to distinguish between:

• Personal data that is of no relevance to the principle of open justice, but which poses a data security threat (e.g. a person's signature); and
• Personal data that is relevant (e.g. the name of a third party referred to in a witness statement or individuals involved in correspondence relevant to the dispute or named in disclosed documents).

Publicity risk and practical considerations

The pilot scheme increases the potential for sensitive commercial information, including contracts and other internal documents underpinning a dispute, to enter the public domain. Parties should consider strategies to minimise the risk of this information becoming publicly accessible ideally before proceedings commence and again at each stage of proceedings.

Where confidentiality is a particular concern parties may consider alternative dispute resolution (such as mediation or arbitration) rather than court proceedings.