Summary

On 20 October 2025, the much anticipated new Practice Direction (“PD”) concerning ‘Access to Public Domain Documents’ filed for or used in hearings in public (PD51ZH) , together with an accompanying guidance note, was published.

The new PD will be piloted from 1 January 2026 to 31 December 2027 in the Commercial Court, London Circuit Commercial Court of the King’s Bench Division, and in the Financial List. It imposes a new requirement on solicitors to refile ‘Public Domain Documents’ in such a way that they will be available to non-parties using the public access section of CE-File (The electronic filing and case management system used by the courts).

Although not a substantive change to the law on which documents are available to the public once they have been referred to in open court and otherwise enter the public domain, the new PD is an important practical change to how those rules are applied and how non-parties obtain access to such documents.

Background

The new PD arises following a review by the Transparency & Open Justice Board, led by Mrs Justice Cockerill, into the ‘open justice gap’. The Board’s review focused on four Key Objectives: Open Courts, Open Reporting, Open Decisions and Open Documents, with the new PD addressing the last category.

Historically, public access to court proceedings was not just a principle, but a practical reality. Members of the public could follow hearings and trials with relative ease because:

1. Evidence-in-chief was delivered orally, allowing listeners to hear directly from witnesses and not just in cross-examination.
2. Key documents were read aloud, often in full, during the hearing.
3. Submissions were (largely) made orally.

This open format meant that anyone sitting in the public gallery could follow hearings and trials as they progressed.

Today, while criminal proceedings largely retain this structure, civil proceedings have changed significantly:

1. Evidence-in-chief is now submitted in writing, and often not available to the public.
2. Judges are expected to pre-read key documents, or are asked to read them silently during hearings. Therefore, very few documents are read aloud.
3. Submissions rely heavily on written skeleton arguments, which are often lengthy, complex, and cross-referred to extensively during oral submissions.

The consequence is that a member of the public has no chance of following and understanding the proceedings unless they have access to the written materials. What was once a live, audible narrative has become a silent exchange of documents, opaque to all but the participants.

Prior to the new PD, only a small category of documents on the ‘court record’ (used but not defined in CPR Part 5) were automatically available on the public side of the CE-File, namely statements of case, public orders and judgments.

In addition, non-parties could request access to certain additional documents from the court record once they had entered the public domain, pursuant to CPR 5.4C and/or under the court’s inherent jurisdiction. The documents in question were colloquially referred to as the Dring documents (Following Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38), and were broadly understood to include: (i) skeleton arguments and other written submissions; (ii) witness statements and affidavits; (iii) most expert reports; and (iv) some documents referred to or read out in open court (which has been interpreted widely to include documents read by the Judge).

However, such documents were not automatically available via CE-File. Non-parties (such as journalists and interested third-parties) were typically required to request copies of the documents from the parties and/or directly from the court. This frequently resulted in a delay, cost, and inconvenience to the requesting party, the litigating parties, and the court. Furthermore, while case and fact specific, our experience was also that requests were not always dealt with consistently (with the result that sometimes documents remained inaccessible notwithstanding the fact they appeared to have entered the public domain).

New Practice Direction: PD51ZH

The new Pilot scheme under PD51ZH is framed as “a first step towards” improving transparency by changing the process by which non-parties gain access to ‘Public Domain Documents’.

The key takeaways are as follows:

1. New pilot scheme: From 1 January 2026, most public hearings and trials in the Commercial Court, London Circuit Commercial Court of the King’s Bench Division, and in the Financial List, will be subject to the new Pilot, which will operate for an initial period of two years and be subject to a review after six months.
2. New ‘Filing Requirement’ on solicitors: The Pilot imposes a new filing requirement on solicitors for the litigating parties, requiring the timely filing or re-filing of ‘Public Domain Documents’ on CE-File within a set period (once the hearing has begun or the documents have been used or referred to in open court; see below). Once filed, the documents will be automatically available to non-parties on the public side of the CE-File, without the need for the parties’ consent or the court’s permission.
   ‘Public Domain Documents’: are defined in paragraphs 7-9 of the PD and consist of: (i) skeletons, (ii) written opening submissions, (iii) written closing submissions, (iv) other written submissions provided to a Judge and relied upon at a hearing, (v) witness statements and affidavits (although not exhibits), (vi) most expert reports (including exhibits), (vii) any other documents critical to the understanding of a hearing ordered by a Judge at the hearing to be a Public Domain Document,[1] and (viii) any other documents agreed by the parties to be Public Domain Documents.
   
3. Caveats and exceptions: Certain exceptions apply, namely:
   • Documents referred to at an ex parte hearing or where pre-existing confidentiality or anonymisation orders are in place (i.e. the requirement to file a document only applies to documents used or referred to in open court).
     • The Pilot will not apply to cases involving a litigant-in-person (i.e. where a party is unrepresented) where the CE-File has not been used previously.
     • Parties may apply for a ‘Filing Modification Order’ (or a ‘FMO’) waiving or restricting the filing requirement or granting permission to file edited or redacted versions.
4. Sanctions for non-compliance: Failure to comply with the filing requirement may result in: (i) a court order requiring compliance; and (ii) proceedings for contempt in the event of continued non-compliance.

Comment

The accompanying guidance describes the Pilot as the “first step towards easier access to documents in the public domain”, which “aims to advance the principle of open justice in the civil courts by testing a relatively simple protocol for access to the main documents which enter the public domain” and “principally inform public understanding of court proceedings”.

It is likely that the Pilot will relieve an administrative burden on the courts by reducing the need for judges to consider requests and applications from non-parties for access to documents, together with the associated inconvenience and cost to parties to litigation and non-parties requesting access. It should also lead to more consistency in what documents are available under the rules.

However, we expect that during its trial period, practitioners and members of the public (including journalists) will be assessing the extent to which the Pilot fulfils its other stated aims, including by looking at the following:

1. Timing (i.e. the ‘Filing Period’): The period within which solicitors are required to comply with the new ‘Filing Requirement’depends on the document in question.
   
   Absent a court order or agreement of the parties to file earlier, the ‘Filing Period’ is: (i) for skeleton arguments and written submissions; two clear days after the start of the hearing (or day on which the document was relied on), and (ii) for all other Public Domain Documents; 14 days after the document is used or referred to in a hearing.
   
   The result is that non-parties (including journalists) who attend a public hearing or trial will not have access to the submissions and evidence in real time. For example, a non-party observing a seven-day trial would not be able to access the written evidence and key documents critical to understanding the hearing on the CE-File until at least 14 days after they have been referred to in open court, by which stage the trial will be long over.
2. Administrative delay: At present, it typically takes a few days (although sometimes as much as a week or more) between a non-party requesting a copy of a document on the public side of the CE-File and the document in question actually being provided. We understand that a dedicated person at court will be responsible for dealing with public requests for documents, although how this will work in practice remains to be seen.
3. Cost: There is a small cost to download public documents from the CE-File (£11 per document). While journalists and interested third-parties are likely to be willing to pay to access Public Domain Documents, it remains to be seen whether the cost will act as a disincentive to ordinary members of the public (for example, for a trial with 10 witness statements, the cost of obtaining all of the written evidence would exceed £100).
4. Limits on scope: The Pilot does not change the categories of documents that are available once referred to or relied on in open court (previously understood as the “Dring” documents). Accordingly, transcripts of hearings, which are a useful way to understand what has happened at a hearing, remain outside the scope of the Pilot. In most high value/high profile cases, the parties commission a private transcript that is usually provided to the paying parties (in draft) the same day. While it is possible for a non-party to request a transcript of a public hearings directly from the court, doing so can entail (not inconsiderable) cost and delay. It might have been possible for the Pilot to bring transcripts that are already in the parties’ possession within in scope of Public Domain Documents, such that they would have been subject to the Filing Requirement, but the drafters declined to do so.
5. Which documents will be public:  It is envisaged that any disputes regarding which documents are ‘Public Domain Documents’ will be addressed at the Pre-Trial Review or at the start of trial. In theory, this could risk protracted debates with resulting increases in costs, but in practice we do not anticipate this being a major concern, given the PD makes clear what the ‘Public Domain Documents’ are.
6. How FMOs will work: PD51ZH provides for FMOs to be sought by any party, or by a non-party that is named or referred to in a Public Domain Document (or a document that is expected to shortly become such):
   • For parties: Although the process for seeking an FMO is intended to be a relatively informal (as part of the trial or hearing), the guidance makes clear that the default position will be full access to Public Domain Documents absent good reasons, and that exceptions will be “rare”. As with any pilot, there is likely to be a degree of contentious debate and the risk of inconsistent approaches at the start of the Pilot, as parties test (and the courts establish) the boundaries of the new regime.
   • For non-parties: The PD also provides a route for a non-party to seek an FMO before a document becomes public (if, for example, they become aware that they have been accused of wrongdoing but did not have the opportunity to contest the allegation). The guidance acknowledges that this will often only become apparent to the non-party after the document has become public (e.g. because they have attended the hearing or seen public reporting on the same), and on that basis, also provides a route for non-parties to seek a retrospective FMO. Whilst the provision of a formal route for a non-party to ‘correct’ or ‘alter’ the court record is a welcome development, it is arguable that by that stage, the damage has already been done.
     
     It also remains to be seen how many FMOs are sought and whether the administrative burden on the courts to consider requests and applications from non-parties for access to documents is merely replaced by FMOs.
7. Legitimate confidentiality concerns: Some commentators have expressed concerns about the risk of ‘collateral use’ (i.e. parties in other litigation using the Pilot to obtain evidence disclosed in one case for the purposes of another), and the impact the Pilot will have on how evidence and other documents are drafted. In our view, these are ‘red herrings’:
   • Collateral use: The ‘Filing Requirement’ is triggered only when the hearing starts (for skeleton arguments or submissions) or when the document is used or referred to in a hearing (for other Public Domain Documents (See for example CPR31.22(1)(a) and CPR 32.12 in the context of witness statements). By that stage, the documents are already ‘in the public domain’, such that the collateral use restrictions no longer apply.
   • Increase of number of documents in the public domain: Under the Pilot, submissions, evidence, and key documents will technically be automatically accessible to the public once a hearing begins or the document is referred to. Previously, non-parties had to request or apply for access. Given the scope of documents in the public domain has increased, it would be prudent for practitioners to advise parties to litigation in the relevant courts accordingly.

While the new Practice Direction doesn’t change the underlying law on public access, we suggest that it does shift the practical landscape. Well-advised parties already draft with public scrutiny in mind, knowing documents may be aired in court.

Now that this exposure happens by default, it may be that it encourages last-minute settlements, as parties weigh the risks of sensitive material entering the public domain.

Finally, as addressed in our previous blog (available here), the new PD also draws into focus one of the key distinctions between litigation (conducted by default in public) and arbitration (conducted by default in private and subject to confidentiality).

If you would like to discuss the content of this article and/or the Pilot further please contact Alex Mobbs, Deborah Tillett or Krupa Vekaria.

[1] For example, the contract which is the centre of an argument about construction of a single term in the context of multiple other terms within the same contract, or the letter which is essentially read out in full and repeatedly referred to.