New Rules on Public Access to Court Documents

From 01 January 2026, parties to cases in the Commercial Court and Financial List will need to file key documents relied upon in proceedings so that they can be accessed by the public.

A new pilot scheme, set out in Practice Direction 51ZH and to run initially for two years, introduces rules to enable the public to access documents necessary to understand cases that go to a hearing. The idea is that, while hearings take place in public, it may not be possible for those who observe them to understand the proceedings without being able to see documents frequently referred to in those proceedings. The new obligations apply to represented parties and unrepresented parties who have already filed a document in the proceedings using the CE-File system.

What are "Public Domain Documents"?

The following categories of documents are "Public Domain Documents" for the purposes of the new rules:

• Skeleton arguments and any written submissions;

• Witness statements and affidavits, but not their exhibits;

• Expert reports, including appendices;

• Any documents critical to the understanding of the hearing ordered by the judge at the hearing to be Public Domain documents.

While the making public of witness statements and expert reports marks a major change, and will affect the impact of court proceedings on those involved, it is the last category of document that will have the most impact in terms of managing the process. The parties are free to agree that certain documents are Public Domain Documents, but in the absence of that the judge will need to consider whether each document referred to is "critical to the understanding of the hearing". Contracts which are the subject of the dispute, plus any key correspondence to which the parties frequently refer are examples of documents we would expect to fall within this category.

How and when do they have to be made public?

Previous drafts of the rule were criticised for lacking practicality, but the PD now provides the detail of how the documents will be made available. Public Domain Documents will now have to be filed using the CE-File system:

• in the case of skeleton arguments and opening and closing submissions, within two clear days of the start of the hearing or the day of the hearing at which it was relied upon;

• in the case of all other Public Domain Documents, within fourteen days of the hearing day on which the document was used or referred to.

The parties can apply to the court for a "Filing Modification Order" waiving or restricting the duty to file a document, limiting public access to it or requiring it to be filed only after redactions have been made.

Existing rules on public access to statements of case remain undisturbed, as do rules in court guides on providing hard copy skeleton arguments to journalists or members of the public who request these at hearings.

What does this mean for you?

Parties need to be aware of these changes and consider their impact. While the pilot scheme starts out in the Commercial Court and Financial List, it is likely to be rolled out across the Business and Property Courts before long.

Witnesses and experts need to be made aware that their statements and reports will be in the public domain. There may be cases where this impacts upon their willingness to participate, or may influence what they will say. Those contemplating litigation will also need to consider what documents may enter the public domain as a result and become available to the press or rivals. This will inevitably feed into considerations of settlement prior to a hearing.

It remains to be seen how willing the court will be to make orders exempting parties from the requirement to file Public Domain Documents, but it will be necessary to consider whether to apply for documents to be exempted from filing or filed only in a redacted form. While certain parts of a contract may be highly relevant to the dispute, there will be other parts that are not in question and are commercially sensitive.

The burden of complying with the electronic filing requirements also falls upon the parties, creating an additional task to be completed during or shortly after a hearing. We expect that many parties will address the issue of what will be Public Domain Documents in advance of a hearing and seek to agree these between them, presenting the judge as far as possible with a list for the court's approval at the outset.

The scheme may increase the attractiveness of arbitration for some parties, where institutional rules commonly provide for confidentiality of all materials created or disclosed in the process.