Key takeaways
New pilot expands public access to court documents
Wider availability supports openness across high‑value commercial cases.
Online filing streamlines access for non‑parties
Simple, low‑fee digital access increases public and media scrutiny.
Businesses must prepare for greater transparency risks
Public‑domain filings may prompt competitors or activists to engage.
With effect from 1 January 2026 a new Access to Court Documents Pilot (PD 51ZH) is in force – access here - Practice Direction 51ZH - Access to Public Domain Documents and a guidance note has also been produced explaining how the pilot scheme is supposed to operate - Guidance Note - Access to Public Domain Documents Pilot - CPR Practice Direction 51ZH
Main points to note
PD 51ZH will apply only in the Commercial Court and London Circuit Commercial Court of the King’s Bench Division and the Financial List (Commercial Court and Chancery Division). It applies to both new and ongoing proceedings.
It only applies to documents which enter the public domain via a hearing which takes place in public. Where a hearing is conducted in private it does not apply.
Certain categories of documents will become public domain documents from the point at which they are used or referred to at a public hearing. Public domain documents will include including skeleton arguments, written opening and closing submissions, witness statements (but not exhibits) and expert reports (including annexes and exhibits),
Via HMCTS CE File, the Courts electronic filing system, non-parties will be given online access to public domain documents from trials or hearings on payment of a small fee. A party that has produced any document which becomes a public domain document, must file that document on HMCTS CE-File website under the relevant designations to allow access by anyone, including non-parties.
There is a clear shift of position, with the default position being that the documents are to be volunteered rather than an application to obtain them being necessary.
There is a period for filing on CE file of 2 clear days for skeletons and opening/closing submissions and 14 days from the date the document entered the public domain for other documents.
It is possible to ask the Court to restrict access to public domain documents through a Filing Modification Order (FMO), but if parties request this they must do so in writing, giving notice to other parties.
PD51ZH is a 2 year pilot till 21/12/27 but will be reviewed after 6 months and possibly extended to the Business & Property Courts nationally.
PD 51ZH contains provision for an order to be made compelling a party to make the appropriate filing before the filing deadline. Cases where it is inappropriate for the documents to be publicly available will be rare.
Any orders that impose confidentiality or anonymity are not affected.
The documents covered by the pilot scheme are a sub-set of the documents that, at common law, are already considered to be in the public domain under the principles in the Supreme Court decision in Cape Intermediate Holdings Ltd -v- Dring [2019] UKSC 38 as they have been placed before the court and referred to at a hearing. Previously the onus was on non-parties to apply to the court to seek access to such documents. The new pilot scheme shifts the starting point, so that the documents can be accessed for a small fee, and the onus will be on those seeking to persuade the court that access should not be given.
Impact of the changes
So, what are the implications of the changes and what do they mean for commercial parties?
The primary aim of PD 51ZH is to advance the principle of open justice.
In theory PD 51ZH does not allow non-parties any additional rights since they could always apply to court to obtain a copy of the document in any event but what it does do is make it infinitely easier for third parties to quickly and easily access the documents simply by paying the fee. Competitors, activist groups and even the media are likely to make use of these enhanced rights.
Accessing documents by non-parties is likely to significantly increase.
Parties involved in Commercial Court proceedings will need to carefully consider the content of any public domain documents, in the knowledge that there is likely to be increased public scrutiny and more than likely more widespread reporting of issues contained therein.
Parties may wish to consider making applications for filing modification orders to protect any confidential/sensitive materials.
Whether these changes will make the UK Courts less appealing or even increase the drive towards an increase in arbitration or other forms of ADR, we will have to wait and see.
