Commercial Court pilot to make more court documents publicly available

From 1 January 2026, a two-year pilot scheme providing for public access to key court documents will operate in the Commercial Court, the London Circuit Commercial Court, and the Financial List (the Pilot). The Pilot aims to improve public access to documents used in civil proceedings by requiring parties to litigation to make more court documents, such as witness statements and expert reports, accessible to non-parties.

The Pilot will be governed by Practice Direction 51ZH and an accompanying Guidance Note. The Pilot does not alter the existing Civil Procedure Rules (CPR) concerning access to documents held on the court’s own file, nor does it affect the court’s powers to make orders regarding document access. (All existing court orders that provide for confidentiality or anonymity will remain in force and will not be superseded by the Pilot.) Instead, the Pilot introduces additional filing obligations for parties to litigation, as detailed below.

Background to the Pilot

A core principle of the English legal system is open justice, ensuring that court proceedings are subject to public scrutiny and that the public can understand both the workings of the legal system and the reasoning behind judicial decisions. In Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, Lady Hale raised concerns about how this principle is applied in modern practice. It can be more difficult to achieve where, for example, evidence in chief from a witness is only provided in a written statement. Under common law, documents placed before the court and referred to at a hearing (such as witness statements) are considered to be in the public domain and therefore potentially accessible to non-parties. However, in practice, non-parties can generally only obtain such documents by making an application to the court, justifying why they are sought.

The Pilot

The Pilot introduces changes to address Lady Hale’s concerns in Dring. Under the Pilot, the onus will be reversed: the default position will be that certain key court documents within the public domain must be made publicly available by the parties. Non-parties will be able to access them from the court’s electronic filing system (CE-File) upon payment of a small fee (currently £11) and without any application to court. Parties and non-parties wishing to restrict access to such documents must ask the court to order this.

1. When will the Pilot apply?

The Pilot will apply between 1 January 2026 and 31 December 2027 to both existing and new proceedings where there is a public hearing in one of the courts listed above. This include both trials and public hearings of interim applications. It will apply to in-scope documents even if they have already been filed at court and/or served in compliance with an existing CPR requirement.

2. What documents must be made available by the parties?

Certain documents which have been used or referred to at a public hearing are deemed to become “Public Domain Documents” for the purposes of the Pilot and will fall within the filing requirement. These are:

1. Written submissions: skeleton arguments, written opening and closing submissions and other written submissions provided to the judge and relied upon in the hearing.
2. Witness statements and affidavits relied upon as evidence in chief at trial or at a public hearing of an application but excluding exhibits and appendices.
3. Expert reports relied upon at trial or at a public hearing of an application including annexes and appendices to the report.
4. Other “critical documents”: any other documents critical to the understanding of the hearing ordered by the judge at the hearing to be a Public Domain Document. The Guidance Note explains that this should only apply where it is artificial to regard a document as not being public — for example, where it has been read out in open court in full or where it is referred to so extensively that it is impossible to understand argument without it.
5. Agreed documents: any other documents agreed by the parties to be Public Domain Documents.

3. What are the filing requirements?

The Pilot introduces new filing requirements for parties which are in addition to those that already exist in the CPR. The party that has produced any document which becomes a Public Domain Document must file it on the public-facing section of the CE-File electronic filing system within the relevant Filing Period which is defined as follows:

1. For skeleton arguments and written submissions: two clear days after the start of the hearing or hearing day at which the document was relied upon.
2. For any other Public Domain Document: 14 days from when the document was used in a hearing (for example, when a witness or expert is called to give evidence). The Pilot provides that a court can make a different order; for example in longer trials, an order for staged filing may be necessary, and a court may deal with this issue at a case management conference or pre-trial review.

If a party does not comply with the filing requirements, the court can order them to do so. Failure to comply with such an order could constitute contempt of court.

4. Can access to documents be restricted?

Of its own initiative, or at the request of either a party to the litigation or a non-party named or referred to in a Public Domain Document, the court may make a “Filing Modification Order” (FMO). A FMO will restrict access to a document that has become, or would be expected to become, a Public Domain Document. For example, it may specify that a non-party may not obtain a specific document, waive or restrict the filing requirements, or permit a party to edit or redact a document before filing. This process is intended to address concerns about public filing, for example where there is confidential material in a document. However, the Guidance Note reiterates that publication is the default position and states that, “since the pilot reflects the law on public domain documents, the cases where it would not be appropriate to make the documents available will be rare.”

The process for obtaining an FMO depends on whether a party or non-party is seeking the order, and whether this is before or after a document becomes a Public Domain Document. This is an issue that parties should bear in mind as they prepare for a public hearing.

1. Before a document becomes a Public Domain Document: a party seeking an FMO in relation to a document that is expected to become a Public Domain document must, before the commencement of the expected Filing Period, file on CE-File a written request and proposed FMO on notice to the other parties. The request should contain reasons (and if necessary, evidence) in support of the order. The Guidance Note describes this as a “relatively informal process”. Where a non-party who is named in a document that is expected to become a Public Domain Document seeks an FMO, they must file a formal application notice under CPR 23 (on notice to the parties) in the same timeframe.
2. After a document has become a Public Domain Document: in this situation, a party or non-party seeking an FMO must apply under CPR 23 on notice to the other parties and any person named in the document who has previously applied for an FMO.

The Pilot also provides that, where a court has ordered an FMO, a non-party may apply to court for a copy of a document to which the order applies.

Key takeaways

1. Additional filing requirements for parties: the Pilot introduces new filing requirements in addition to any existing filing requirements in the CPR; as a result, parties may need to file the same document in more than one location on CE-File. Parties should ensure the new filing deadlines are incorporated into their case management processes and consider how to manage them in longer trials.
2. Increased public scrutiny: by switching the onus onto parties to make certain documents publicly available, court documents, including witness statements and expert reports, will become much more readily accessible to non-parties. It remains to be seen how broadly the courts apply the requirement to make public “documents critical to the understanding of the hearing”. Parties and their lawyers should be alive to any concerns around confidential material in documents and consider whether it would be appropriate to apply for an FMO in advance of a public hearing.
3. Potential extension of Practice Direction after Pilot is complete: as set out in the Guidance Note, a review of the Pilot after six months is anticipated and, if it is successful, it will likely be extended to further courts.

This post was prepared by Nigel Fisher, NRF London Court Manager, with thanks to Max Sharp for his assistance.