Updated: 21 October 2025 - The Practice Direction has now been published. See updated details below.
Recent developments signal a significant shift in court procedures in England and Wales. During an LSLA lecture on transparency and open justice, Mrs Justice Cockerill, recently appointed as Deputy Head of Civil Justice, outlined a pilot practice direction (PD) that will place select court documents squarely in the public domain via a new, public-facing side of the electronic court file (CE-File).
The new Practice Direction 51ZH – Access to Public Domain Documents has now been published and will come into force on 1 January 2026. The Judiciary website has also published a Guidance Note on the scheme.
The pilot will run for two years, from 1 January 2026 to 31 December 2027, which is significantly longer than the six-month period initially anticipated. However, there will be a review after six months. Below, we explore what this pilot entails, why it matters to litigants, and how you can best prepare for heightened transparency and potential public scrutiny.
Key features of the pilot scheme
Implementing Dring v Cape
The pilot marks the judiciary’s most recent effort to implement the landmark Supreme Court judgment (and subsequent High Court ruling) in Dring v Cape. Those decisions confirmed that open justice obliges courts to give access to documents placed before a judge and referred to by any party during trial, except where there is a compelling reason not to do so.
Public by default
Under the pilot, documents deemed 'public' would be placed on the public side of the CE-File. In addition to those documents that the public can currently access or apply to access, a potentially controversial category of documents termed those 'critical to understanding the case' will also be automatically available.
Currently, anyone (including journalists or other members of the public) seeking to access court documents can request and obtain most documents referred to in court hearings, provided they first apply for access and the court grants this access.
Under the pilot, however, the need to apply to the court will be removed. Instead, under the PD parties will need to publicly file the following documents deemed to be (Public Domain Documents):
- skeleton arguments
- written openings
- witness statements/affidavits (but not exhibits)
- expert reports (including exhibits)
- agreed documents
- most controversially, documents 'critical to understanding the case'.
While third parties can currently seek to access many of these documents, they are not automatically viewable. Under the pilot, these documents will be public by default.
There will, however, still be an opportunity to limit which documents, or specific information within them, are published – the intention is that this will be addressed with the judge at the hearing.
Documents critical to understanding the hearing
The most controversial provision is paragraph 8(g) of the Practice Direction, which empowers the judge to order the filing of documents not expressly listed in the Practice Direction where such documents are critical for understanding the hearing arguments. The Guidance Note clarifies that this provision is narrowly targeted, intended to capture only those documents where it would be artificial to treat them as non-public – typically where a document has been read out in open court (either in full or substantially in full), or where it has been referred to so extensively that the arguments become incomprehensible without it. The Guidance Note illustrates this with practical examples: a contract that forms the centrepiece of a construction argument about a single term, where understanding that term requires reference to multiple other provisions within the same contract; or a letter that has been essentially read out in its entirety and repeatedly referenced throughout the hearing, such that its exclusion would render the proceedings unintelligible.
Filing Modification Orders (FMOs)
Under the pilot, parties will be able remove or redact sensitive information through a mechanism known as Filing Modification Orders (FMOs). The court may make an FMO to prevent non-parties from obtaining copies of a document, waive or restrict the filing requirement, require documents to be edited or redacted before filing, extend or amend the filing period, or make such other order as it thinks fit.
FMOs may be made by the court of its own initiative or sought by any party or any non-party named or referred to in a Public Domain Document. Parties seeking an FMO must file a written request before the commencement of the expected filing period, whilst non-parties must file an application notice under Part 23. Once a request is made the Filing Period is suspended until that request is determined.
However, the default position will be that once documents are referred to in open court they become public.
Practicalities and Scope
- Scope: The pilot will apply to the Commercial Court and London Circuit Commercial Court of the King's Bench Division, as well as the Financial List (Commercial Court and Chancery Division).
- Timeframe: The pilot will start from 1 January 2026 and will run for two years until 31 December 2027, with a review after six months.
- Hearings covered: Only documents used in 'public' hearings (ie open court) fall within scope. Private or confidential hearings, such as without notice or anonymised proceedings, remain outside the pilot.
- CE-File system only: The pilot will only apply to proceedings where the court CE-File system is used, such that cases involving litigants in person are excluded for the time being. CE-File is an existing court filing system that is widely used and operates through three distinct layers: public access, party access and court access. The Pilot establishes a process whereby documents deemed Public Domain Documents must be filed on the public access part of CE-File. Whilst such documents will generally have already been filed by the parties on CE-File, they must be re-filed on the public-facing side of CE-File as publicly accessible documents once a public hearing has commenced. Importantly, this process eliminates any risk of inadvertent publication of private material by the Court, as the filing of documents as public remains entirely within the parties' control.
- Filing requirements and timescales: Parties must file Public Domain Documents on CE-File under specific designations within defined filing periods. For skeleton arguments and written opening and closing submissions, this is two clear days after the start of the hearing. For other documents, the filing period ends at 16.00 on the fourteenth day after the document is used or referred to in a hearing, unless the court orders otherwise or the parties agree to earlier filing. For longer hearings there will need to be orders (made at the start of a trial or at a case management conference or pre-trial review) for staged filing.
- Interaction with existing rules: The Practice Direction does not affect other obligations to file documents on CE-File, nor other rights to access court documents. It does not affect the operation of existing CPR rules, and pre-existing orders imposing confidentiality or anonymity regimes will not be overridden by the Pilot.
- Non-compliance: Whilst non-compliance is not anticipated to be a serious issue – given that professional court users well understand the importance of open justice – the Practice Direction nevertheless contains provision for an order compelling a party to make the appropriate filing. Such an order would be amenable to the usual sanctions by way of contempt of court if not complied with.
Retrospective effect
One area of initial uncertainty was whether filing obligations under the PD would apply to documents generated prior to the start of the Pilot, if the hearing itself occurs after that date. The published Practice Direction confirms that it will apply to documents filed for or used in hearings taking place in public during the pilot period in both existing and new proceedings. This means that cases that are currently going through the relevant courts will be subject to the new rules starting 1 January next year.
Broader plans for the pilot
The goal is not only to increase transparency in commercial litigation, but also to likely expand the measures to other courts in due course once lessons have been learned from the pilot scheme. The emphasis here is on reform from the ground up, with the potential for differing practices across different courts with different needs once those courts eventually test the PD. Ultimately, the pilot aims to align court processes with the fundamental principle of open justice, creating a default that documents introduced in public hearings should also be accessible.
Judicial considerations on public access
Judges are expected to think carefully about the boundary between open justice and the need for litigants to protect sensitive or proprietary information. Under the pilot:
- Default to openness: In line with Guardian News and Dring jurisprudence, judges will lean toward disclosing documents that have been used in open court.
- Assessing FMOs: When deciding whether to allow redactions or disapply publication, judges will consider whether secrecy is essential to achieve justice. Merely preferring privacy is unlikely to be enough to justify an FMO.
- Timely rulings on access: Judges will be encouraged to rule on whether documents become public immediately or at phased points in proceedings (eg after specific witnesses have given evidence). This incremental approach will allow a measure of control and time for parties to seek modifications if needed.
This emphasis on a case-by-case approach echoes the Transparency and Open Justice Board’s overarching view that no single rule fits all when balancing transparency against confidentiality.
Practical Implications
- Publicity risks: Documents will be readily accessible to anyone with an interest in the dispute, magnifying reputational and commercial risks. Media outlets and competitors will be able to obtain copies of such documents without applying to the court, potentially going on to use them in press coverage or broader public relations campaigns (without the cost of applying to court or the risk of defamation).
- Dual purpose documents: With a broader ultimate audience, parties may need to have public consumption in mind when drafting certain documents, something which may not be straightforward to navigate.
- Greater scrutiny: Easier public and media access means a higher likelihood of close examination of information on the public stage. Detailed witness evidence, or previously private commercial terms, might end up on various stakeholders’ radars.
- Attractiveness of arbitration and mediation: Arbitration and mediation are confidential in nature. As such, parties concerned to avoid additional eyes on the details of their disputes may look increasingly to alternative forums to resolve their claims where their interests in preserving privacy and reputation may be better served.
- Court of public opinion: Conversely, smaller or less well-capitalised businesses may find increased visibility of case details advantageous-particularly if they aim to highlight the conduct of a larger or more powerful partner, or to leverage a settlement.
- International and third-party claims: Foreign litigants, particularly in US proceedings, may attempt to rely on the pilot to obtain documents for use in overseas litigation. Because the English courts have traditionally refused broad or class-based requests tantamount to pre-trial discovery (see our earlier article), easier access to court-filed documents under the pilot scheme may be perceived by some as a back door to the same objective. More generally it remains to be seen how collateral use concerns will be addressed by the courts when ordinarily the use of documents disclosed in one case (and, if not themselves made publicly available, potentially referred to in witness statements or agreed documents) cannot be used for other purposes without the consent of the disclosing party.
- Early confidentiality planning: Integrating confidentiality strategies from the outset of proceedings, including considering whether to redact sensitive information or invoke FMOs when necessary, may prove vital to the overall litigation approach.
- Court shopping: For as long as the pilot continues to apply only to the specified courts, parties at the outset may have greater regard to the court in which they issue their claims.
- Settlement timing: Settling a dispute before the risk of greater public exposure becomes significant is likely to take on added importance, and incorporating this consideration into litigation strategy will be crucial. Early resolution could enable parties to avoid having certain documents in open court (and thereafter the public domain) – particularly if the hearing is scheduled to occur after 1 January 2026.
- Time estimates and burdens on parties: Parties will need to give consideration to the additional time that may be required at hearings to discuss any FMO requests with the judge. Redactions pursuant to an FMO may also, depending on the extent of the order, place additional burdens on parties. Unclear too is the extent to which the FMO process (as we have seen with certain measures implemented in other pilot schemes) may create any opportunity for strategic point-scoring between parties (and the costs associated with the same), even though the default position, from which it will be hard to sway judges, is that documents once in open court become public.
With the Practice Direction now published, we would particularly emphasise:
- Immediate planning required: With the pilot commencing on 1 January 2026, there is limited time to integrate confidentiality strategies into your litigation approach for matters that may be affected.
- Extended pilot period: The two-year duration means this regime will apply for considerably longer than initially anticipated, increasing the importance of understanding and adapting to these new requirements. ·
- FMO process clarity: The published Practice Direction provides greater detail on the process for obtaining Filing Modification Orders. Whilst this is intended to be an informal process, parties will need to act swiftly and before filing periods commence to secure protection for sensitive information.
- Strategic considerations: All of the points raised above regarding publicity risks, document drafting, attraction of alternative dispute resolution, settlement timing, and court selection remain pertinent and should be factored into your litigation strategy.
Conclusion
The open documents pilot embodies a notable advance in the push for transparency, aligning with historic common law principles and responding to modern calls for greater public scrutiny. Nonetheless, many tactical and procedural questions remain, particularly around how judges will balance openness with genuine confidentiality needs.
Parties litigating in the commercial courts – from 1 January 2026 forward – should proactively prepare for the shift this pilot represents. We encourage you to reach out with any concerns about how these developments could affect your legal or commercial objectives.
Please contact our Disputes and Investigations team if you would like to discuss how the open documents pilot might affect your case or broader litigation strategy.
