A View From The Exchange: Broadening Public Access to Court Documents

On 1 January 2026, a new pilot scheme came into force making it easier for members of the public to obtain access to certain documents filed with the Court in civil proceedings. This pilot reflects the growing trend of transparency within the courts in England & Wales, in accordance with the principle of open justice.

What cases does the Pilot apply to?

The pilot is contained in Practice Direction 51ZH and currently applies only to cases in the Commercial Court, the London Circuit Commercial Court of the Kings Bench Division and the Financial List. The Pilot will run for two years. It will not apply to hearings held in private.

What are the key changes in the Pilot?

Under the pilot, members of the public will no longer need to make an application to access the following documents, where they have been used or referred to in open Court:

• Skeleton arguments;
• Written openings;
• Witness statements (excluding exhibits);
• Expert reports;
• Documents agreed by the parties; and
• Any documents critical to the understanding of the hearing

(Public Domain Documents).

Public Domain Documents that are used or referred to at a public hearing or trial will then have to be re-filed on CE-File within strict time limits following the hearing.

This is a significant change – previously, non-parties could only access these documents following a successful application to Court.

Can Parties restrict such documents from becoming public?

If a party has concerns about a document being made available to the public, they can seek a Filing Modification Order (FMO) to apply redactions or restrict public access to the document. But cases where it would not be appropriate to make Public Domain Documents available will be rare.

The Pilot steers away from formal applications by the parties for FMOs. An FMO can be sought during a trial or hearing. A written request for an FMO, and draft Order, with evidence should only be used where necessary.

Having recently secured an FMO during a hearing in circumstances where unpleaded and inappropriate allegations were made against our client, our experience is that this can be a relatively informal process which does not significantly extend the time estimate for a hearing. However, parties should prepare thoroughly in the event that a challenge is made either by an opposing party or by a member of the press at the hearing.

Requests for an FMO may also be made before a hearing and when the judge is not yet assigned by making the request via CE-File. Once a request is made the Filing Period is suspended until that request is determined.

If the hearing has already taken place so that the document is already a Public Domain Document, a party can still ask the court for an FMO, but this will have to be done by formal application under CPR Part 23 rather than written request. Non-parties will also have to make a formal application under CPR Part 23 for FMOs or for access to documents which are not made available or fully available.

What are the implications of the Pilot?

• Parties should give early consideration to the information that might become public: It will now be far easier for the press to obtain documents in court proceedings. Parties should give early consideration to the information that is contained in Public Domain Documents and consider whether they need to seek an FMO. For example, a witness statement might be drafted many months before it is referred to at a public hearing.
  
  A key category to consider is "Documents critical to the understanding of the hearing". The Guidance Note to the Pilot gives the following two examples of such a document:

• A 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; and
• A letter which is essentially read out in full and repeatedly referred to.

• Potential expansion: A review of the Pilot will be undertaken after six months and it is possible that it will be extended to further courts. Parties engaged in litigation should familiarise themselves with the Pilot now to avoid being caught off guard.

Authors: Philip Linton, Partner; Fraser Collingham, Associate