Non-party access to documents used in civil court proceedings: PD 51ZH – Access to Public Documents Pilot
Under Practice Direction 51ZH, the new HMCTS Pilot Scheme, alternatively named the “Access to Public Documents Pilot” (“Pilot”) will come into effect for a two-year period starting on 1 January 2026. The Pilot operates alongside existing CPR Part 5 and PD 5A (rules on filing and access to documents).
The purpose of the Pilot will be to make certain documents deployed in civil proceedings (“Public Domain Documents”) accessible for anyone (party or non-party to proceedings) to download from the HMCTS CE-File website. The accompanying Guidance Note states the Pilot “…forms part of the current consideration of access to court documents and documents deployed by parties in court proceedings”. It is intended as a first step towards easier access to documents that enter the public domain and “…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 … principally inform public understanding of court proceedings”.
Initially the Pilot will operate only in the Commercial Court and London Circuit Commercial Court of the King’s Bench Division, and in the Financial List (Commercial Court and Chancery Division). A review is anticipated after six months and, if successful, the Pilot will be extended to further courts, likely other Business and Property Courts (which include the Business List, Companies List, Technology and Construction Court, Intellectual Property List, Insolvency List, and others).
The position prior to the Pilot
Prior to the launch of the Pilot (and currently, in civil courts of England and Wales in which the Pilot does not apply), the position regarding non-party access to court documents is as set out in the case of Cape Intermediate Holdings plc v Dring [2019] UKSC 38. The starting point is that the principle of open justice applies to all courts and tribunals exercising the judicial power of the state. This means that, unless inconsistent with statute or rules of court, courts have an inherent jurisdiction to determine what open justice requires regarding access to court documents.
Dring established that, pursuant to the court’s inherent jurisdiction, the default position is that the public should be allowed access to parties’ written submissions and arguments, and any other documents placed before the court and referred to during a public hearing. However, pursuant to Dring there was no automatic right to access such documents. It was for the non-party seeking access to make an application to the court explaining why access is sought and how it would advance the principle of open justice, with the court then carrying out a balancing exercise before reaching a decision, weighing factors such as the purpose of open justice and the potential value of the information against privacy, commercial sensitivity and national security.
What is the Pilot’s scope?
The Pilot will not change the principles of open justice in relation to access to court documents, but it will change the practicalities of accessing court documents. Under the Pilot, the default position will no longer be that non-parties must make an application to access Public Domain Documents, as the onus (subject to some exceptions) will be on the parties to make them publicly accessible by default. The Pilot will require parties to re-file Public Domain Documents as publicly viewable, under new filing designations on CE-File.
What are Public Domain Documents?
The Public Domain Documents are documents which most commonly enter the public domain as a matter of common law principles, as follows:
- skeleton arguments;
- written opening and closing submissions and any other written submissions provided to a judge and relied upon in the hearing;
- witness statements and affidavits;
- expert reports;
- annexes and appendices to expert reports;
- any other document or documents critical to the understanding of the hearing ordered by the judge at the hearing to be a Public Domain Document; and
- any documents agreed by the parties to be Public Domain Documents.
Documents appended or annexed to witness statements or affidavits are not Public Domain Documents. Where Public Domain Documents refer to other documents, such documents will not become Public Domain Documents unless they are otherwise a Public Domain Document.
Filing periods
The filing period for re-filing Public Domain Documents under the public filing designations (“Filing Period”) will depend on the type of Public Domain Document. For skeleton arguments and written opening and closing submissions, the Filing Period will be two clear days after the start date of the hearing or hearing day when the Public Domain Documents were relied upon. For other Public Domain Documents, it will begin on the day they were used or referred to in a hearing and end at 16:00 on the 14th day after that, unless ordered otherwise.
For longer hearings there will need to be orders (made at the start of a trial, at a case management conference or pre-trial review) for staged filing.
Carve-outs and exclusions
The requirement will not apply in proceedings where a party is not legally represented and has not already filed a document in those proceedings using CE-File, nor will it apply where confidentiality orders are in place or to documents referred to in private hearings.
Restricting access
The Court may restrict access to Public Domain Documents, by making a Filing Modification Order (“FMO”), which it may do by its own initiative or if sought by:
- a party, by the party filing a written request and a proposed FMO; or
- a non-party (if such non-party is named or referred to in a Public Domain Document, or a document expected to become a Public Domain Document), by the non-party making a Part 23 application on notice to the parties and any other person named who has previously applied for an FMO.
An FMO may be such order about a Public Domain Document as the Court sees fit, including that a non-party may not obtain a copy of it; waiving or restricting the filing requirement; or permitting editing or redaction of the Public Domain Document prior to filing.
The Pilot does not stipulate in what circumstance(s) it will make an FMO, but any party that seeks one must provide reasons in support of the proposed FMO.
Enforcement and sanctions
Non-compliance with the Pilot may result in a court order to file the relevant Public Domain Document, and any failure to comply with that court order may, in the usual way, result in sanctions by way of contempt of court.
Implications and tips
Although there has been no change to the law in relation to which documents are considered to be rightly accessible to the public, the Pilot is likely to give rise to an increase in court documents actually being accessed by non-parties in practice. Without the procedural barrier of the requirement to make an application, and with the default position that certain documents will be accessible at the click of a button, this should lead to more members of the public viewing more court documents.
In proceedings where the Pilot applies, thought will need to be given before (and during) each hearing to consider which documents will likely fall within the Public Domain Documents definition and public versions will need to be prepared for filing within the Filing Periods.
Where confidentiality, privacy, commercially sensitive or third-party data concerns arise, parties should consider early whether to seek an FMO with clear reasons and a proposed order and prepare appropriately redacted versions for filing. Coordination with opponents and experts may reduce disputes over scope or redactions, and parties may, where appropriate, agree documents to be treated as Public Domain Documents to assist open justice, subject to necessary protections.
In cases involving unrepresented parties or ex parte material, parties should confirm whether the Pilot applies before taking steps.
Parties may wish to ensure that hearing bundles mark documents that will require public re-filing and diarise the two clear day or 14-day deadlines to avoid post-hearing compliance risk.
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