Access to Public Domain Documents Pilot: Practice Direction 51ZH

The Pilot

The Pilot codifies the position at common law, set out by Lady Hale in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, which permits the public the right of access to documents placed before a court and referenced in a public hearing^[4]. This Pilot will apply to cases heard in the Commercial Court, the London Circuit Commercial Court (King’s Bench Division), and the Financial List (Commercial Court and Chancery Division)^[5].

Crucially, The Pilot will change how documents that enter the public domain as part of a public court proceeding are accessed. These documents will be available by default, rather than requiring individuals to apply for access. It is important to note that the Pilot does not seek to greatly extend the scope of documents that should enter the public domain; rather, it seeks to streamline how they do so and make them more easily available to non-parties. The intention is for all relevant documents to be refiled by the Parties on a public-facing CE-File site once the court hearing has started, meaning they will not be accessible to the public in advance of a hearing^[6].

Documents that fall under the new rules

The documents selected by the Pilot have been termed public domain documents^[7]. They have been selected as those most likely to inform the public’s understanding of court proceedings and those most commonly sought at common law. They are as follows:

• Skeleton arguments.
• Written opening and closing submissions, along with any other written submissions provided to a judge and relied upon in the hearing.
• Witness statements and affidavits relied on at trial or at public hearing:
  • • Including those relied upon as evidence in chief at trial and those relied upon at a public hearing of an application.
    • Excluding documents appended or annexed to the witness statement or affidavit.
• Expert reports relied on at trial or at public hearing, including appendices and annexes.
• Any other document or documents critical to the understanding of the hearing ordered by the judge at the hearing, or agreed by the parties to be a public domain document.

Filing Modification Orders

Pursuant to the Pilot, the default position for the above documents is that any parties who do not wish to file, or wish only to file some documents, must apply for a “Filing Modification Order” or “FMO”^[8]. The obligation to explain why documents should not be included, or included with redactions, rests with the party making the request. A common justification would be confidentiality concerns. The judge retains discretion to make an order for redaction if, on balance, there is a protected interest that outweighs the public’s right to access. An FMO can also be made by the court at its own discretion, or by a non-party named in a document^[9].

If parties do not comply within the timeframe, or refuse to make documents public, the court may make an order to compel a party to make a filing. The party would be sanctioned through contempt of court if this were not remedied.

Expected impact of the Pilot

Confidentiality and publicity. With more court documents becoming more easily accessible, there may be an increase in media reporting around current court hearings. It will become vital that FMOs are made in good time to avoid any documents being published that should be restricted.

Arbitration or litigation. For clients seeking full confidentiality of their legal claims, it may be necessary to opt for arbitration or ADR, to which the Pilot does not apply. At a minimum, this development should be borne in mind when drafting a contractual dispute resolution clause.

Boost London’s position as the hub for international litigation. The London Commercial Court is the leading international centre for the resolution of complex commercial litigation, delivering 196 judgments between 2023 and 2024 (more than New York Commercial Division and the Dubai International Financial Centre).[10] It remains to be seen whether greater transparency into the courts’ decision-making will make London even more attractive to foreign litigants, who made up 61.7% of all litigants appearing before the court between 2024 and 2025.^[11]

Time estimates and administrative burden. The Pilot will likely place an extra burden on both parties, requiring additional time at hearings to deal with any FMO requests or redactions, possibly opening the door to protracted arguments on this point and the associated costs. This is alongside greater, albeit still limited, administrative duties in redacting and refiling documents to the public facing CE File site.

Crowell would like to thank Phoebe Kingsman for her contribution to this alert.