The Commercial Court has just announced a new six-month Pilot Practice Direction (available here) to provide further transparency and access to court documents in furtherance of the principle of open justice, a key pillar of the English justice system.
However, the expansiveness of modern litigation means that evidence and written submissions are provided to and read by judges in advance which are not easily accessible to members of the public.
Pilot Practice Direction 51ZH – Access to Public Domain Documents
To address this issue, a pilot Practice Direction 51ZH (“PD 51 ZH”) has been introduced and shall come into force from 1 January 2026 to 31 December 2027. PD51 ZH provides:
- The following categories of documents, unless otherwise ordered by the court, which have been used or referred to at a hearing in public are to be considered “Public Domain Documents”:
- Skeleton arguments
- Written opening submissions and written closing submissions
- Other written submissions provided to a judge and relied upon in the hearing
- Witness statements and affidavits
- Expert reports (including annexes and appendices)
- Any other document critical to the understanding of the hearing ordered by the judge to be a Public Domain Document or any documents agreed by the parties to be Public Domain Documents.
- Such Public Domain Documents are to be made available on CE File, the English Commercial Court’s online filing system to the general public, including non-parties to the litigation.
- Each party has an obligation to file public versions of the Public Domain Documents on CE File within a specified filing period.
- However, the court has the power to make orders modifying the application of PD51 ZH in respect of the publication of a Public Domain Document, known as a Filing Modification Order (“FMO”).
The impact of PD51 ZH
PD 51 ZH modifies the currently prevalent approach where non-parties had to apply to receive documents available with the court. This in turn may give rise to privacy and confidentiality concerns in respect of the level of detail in court filings.
Parties will carefully consider how any publicly available information could impact them. This in turn will lead to a number of FMO applications from parties. However, given the general approach to open justice, it is expected that courts will require strong reasons to allow an application for an FMO.
In practice, parties and legal practitioners will need to be careful about how commercial sensitive material is presented in court filings. Where there is heightened sensitivity towards the public disclosure of information, parties will likely turn towards arbitration and mediation to resolve their disputes. The confidential nature of these dispute resolution mechanisms will prove attractive to such parties.
Where next?
The announcement from the Commercial Court notes that the pilot is expected to run for a period of two years (i.e. from 1 January 2026 to 31 December 2027). Depending on the success of the pilot, it may be expanded to other civil courts in the UK.
If you expect to be, or are already in the Commercial Court, you assess the potential impact PD51 ZH is likely to have on your case. Our team of commercial litigation and arbitration specialists in London are at hand to address any concerns you may have.