The Pilot for wider public access to commercial court documents: What you need to know

Introduction

On 20 October 2025, the new Practice Direction 51ZH on Access to Public Domain Documents (the Pilot) was published, along with an accompanying guidance note, marking a significant development in the pursuit of transparency within the civil justice system of England and Wales. From 1 January 2026 to 31 December 2027, the Pilot will operate in the Commercial Court, London Circuit Commercial Court of the King’s Bench Division, and in the Financial List, with a review taking place after the first six months. If successful, the Pilot will be extended to further courts. Its purpose is clear: to make access to court documents that enter the public domain simpler, more efficient and more consistent.

The principle of open justice has long underpinned the English legal system, ensuring that hearings are generally open to the public and the media, and that what is said in court can be reported freely. Yet, as civil litigation has become increasingly reliant on written materials rather than oral argument, the practical ability of the public to understand proceedings has diminished. PD 51ZH seeks to close this gap. It sets out rules on which court documents are considered to have come into the public domain, and establishes a structured process for their filing and public availability though the CE-File system, without need for an application to court.

Crucially, the Pilot strives to balance openness with the need for protection of privacy and confidentiality where warranted. Existing confidentiality orders, for example, remain unaffected, and parties may apply for Filing Modification Orders (FMOs) where necessary (see further below). In doing so, PD 51ZH reflects the judiciary’s commitment to weigh up competing interests of open justice on one hand, and reasonable privacy expectations regarding highly sensitive or confidential information on the other hand.

 

Scope of the Pilot

The driving force behind the Pilot stems from the case of Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, in which the Supreme Court discussed public access to documents and urged that the bodies responsible for drafting court rules consider the open justice principle. The principles established in Cape v Dring set out that “Public Domain Documents” are those that have been placed before the court and referred to in a hearing. The Pilot therefore facilitates public access to documents that are already considered part of the public domain under common law.

Public Domain Documents as defined in PD 51ZH include:

• skeleton arguments;
• written opening and closing submissions;
• other written submissions provided to and relied upon by the judge;
• witness statements and affidavits;
• expert reports;
• any other relevant document ordered by the judge to be a Public Domain Document; and
• any documents which have been agreed by the parties to be Public Domain Documents.

One of the most debated provisions is paragraph 8(g) of the Pilot, which gives judges discretion to require the public filing of documents not expressly listed above, where those documents are essential to understanding the arguments presented at the hearing. The Guidance Note clarifies that this power is narrowly confined to “objectively key documents”. It applies only in situations where treating a document as non-public would be “artificial” – typically where the document has been read out in open court (in full or substantially), or referenced so extensively that the arguments cannot be understood without it.

If a party does not want to file a document, or only wants to file in part, for example due to confidentiality concerns, it will have to apply for a FMO before the deadline for filing. FMO applications by parties are intended to be relatively informal; they only require a written request and a draft order. Evidence should only be included where strictly necessary. Non-parties can also apply for an FMO but must do so via CPR Part 23. The judge may order filing with redactions or no filing pending an application by an interested party. The guidance makes clear that only on rare occasions may it be appropriate to not make documents available at all.

 

Practical considerations

The Pilot introduces several practical considerations for court users.

Previously, non-party access to Public Domain Documents required a formal application to the court. Under the Pilot, Public Domain Documents have to be re-filed by the parties within set timescales in a public area on CE-File. Those documents will become available to the public to download and are therefore more easily accessible.

The Pilot applies to documents filed in connection with hearings taking place on or after 1 January 2026. This includes documents filed before that date, provided the hearing itself occurs after 1 January 2026. If a Public Domain Document was filed prior to 1 January 2026, this document must be refiled on CE-File under new designated categories. For instance, a witness statement filed prior to 1 January 2026, must be refiled under "Public Witness Statement" once it is referred to or relied on in a public hearing, and once the applicable filing period is triggered. Court users must therefore consider if documents need to be re-filed; diarise deadlines for filing obligations as set out in the Practice Direction; and consider if an FMO request is required.

For clients, preparation is key. Now is the time to identify cases falling within the Pilot and flag sensitive information contained in Public Domain documents so that possible redaction strategies via an FMO can be implemented. Clients should anticipate the possibility of increased public and media attention as certain documents become more accessible, and should have appropriate discussions with witnesses whose statements will become publicly available on CE-File once they are in the public domain.

 

Open justice across jurisdictions: A US comparison

Although PD 51ZH signals a shift towards greater transparency, the English courts still offer significantly narrower access to court documents compared to jurisdictions like the United States, where expansive disclosure underpins the litigation environment. In the US, guided by the First Amendment and common law principles, public access to judicial proceedings is strongly emphasised. Courts have repeatedly affirmed the public’s right to inspect and copy judicial records, subject only to narrow exceptions.

Federal courts operate the PACER system (Public Access to Court Electronic Records), which allows parties and non-parties to view case materials for a fee. Under the Open Courts Act 2020, this access is expected to become free in the future. PACER provides broad access to most case related documents, whereas the UK pilot only covers documents already deemed to be in the public domain.

The English approach has notable strengths. It prioritises judicial control over access, ensuring sensitive information is safeguarded and disclosure remains proportionate. By limiting access to documents already in the public domain, a careful balance is struck between openness and confidentiality, reducing risk of misuse.

In short, while the US model offers broader access, the English system emphasises fairness, privacy and controlled implementation – values that remain central to its legal tradition.

 

Conclusion

The Pilot introduces new procedural requirements and marks a significant step toward greater transparency and access to documents in civil justice. At its core, litigation is a public process for resolving disputes, and this initiative reinforces that principle. By streamlining access to documents already in the public domain, the Pilot strengthens the ethos of open justice while preserving the safeguards of privacy and proportionality that remain central to the legal tradition of England and Wales.

Looking ahead, the Pilot will be subject to a six-month review, which may bring refinements to its scope and operation. Practitioners should expect further clarification on issues such as the automatic redaction of sensitive details - particularly witness addresses – without the need for a FMO. These developments will shape how transparency and confidentiality are balanced in practice and ensure that already constrained court time is not unduly taken by dealing with FMOs. Staying informed and taking proactive steps will help mitigate risk and ensure compliance as the Pilot evolves.

For more information, please feel free to contact Nadya Rouben or Annemie Heubach.