Open justice by default: PD 51ZH explained

From 1 January 2026, the way in which non-parties access documents in commercial court proceedings will significantly change. Practice Direction 51ZH, the Access to Public Domain Documents pilot scheme, introduces a two-year pilot scheme that shifts the default position on access to documents used in public hearings.

It will run for two years in the Commercial Court and London Circuit Commercial Court of the King’s Bench Division, and the Financial List (Commercial Court and Chancery Division) (together, the Pilot Courts).

As a part of this scheme, key documents used or referred to in public hearings held in the Pilot Courts will, by default, become available to third parties through the court’s online system, without notice to the parties and without the need to apply to the court.

The scheme reflects judicial concern that the existing procedure for non-party access to court records is unduly burdensome and does not adequately promote open justice. Its aim is to provide more consistent and effective access to documents which have entered the public domain.

The status quo

At present, pursuant to CPR 5.4C(1), non-parties are entitled as of right to obtain copies of public orders, judgments and statements of case upon payment of a fee. Access to any other court records, such as witness statements or expert reports, requires a specific application under CPR 5.4C(2) or the court’s inherent jurisdiction to uphold open justice, as affirmed by the Supreme Court in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38.

To obtain copy documents under CPR 5.4C(2), an applicant must file an application notice identifying with reasonable precision the document or class of documents sought, explaining the reasons for requesting access, and addressing countervailing factors such as confidentiality and proportionality. They must also bear the associated costs of the application and copying fees. 

The court must determine whether granting access is in the interests of justice. This involves a fact-sensitive balancing exercise, weighing the extent to which granting access to the material sought would further the principle of open justice against the risk that disclosure might prejudice the proper administration of justice or infringe the rights and interests of the disclosing party or others. In doing so, the court must assess the non-party’s reasons for seeking disclosure against countervailing considerations such as confidentiality. The court will also consider the proportionality and practicality of granting access. 

In practice, this framework has produced a significant access gap. Beyond statements of case and published judgments and orders, it is difficult - and costly - for non-parties to obtain court records that have entered the public domain and underpin the court’s decision-making unless applicants know exactly what to request and are willing to mount targeted and time-consuming applications, particularly in heavy commercial litigation. The pilot aims to address this procedural limitation.

Practice Direction 51ZH

PD 51ZH seeks to narrow the existing access gap by supplementing the current discretionary regime with a more systematic, default-based model of non-party access to Public Domain Documents.

Public Domain Documents

PD 51ZH.8 defines Public Domain Documents as specific categories of documents which are deemed to enter the public domain once used or referred to at a hearing in public. These include skeleton arguments; written opening and closing submissions and other written submissions provided to the judge and relied on at a public hearing; witness statements and affidavits (but not their exhibits); and expert reports (including annexes and appendices). 

In addition, PD 51ZH.8(g) empowers the court to designate any other document “critical to the understanding of the hearing” as a Public Domain Document. The circumstances in which this will happen are not defined by the accompanying guidance, save to make clear that “[it] is designed to apply only where it is artificial to regard a document as not being public”. For instance, where a document is read out in open court in full (or nearly in full), or ​where a document is referred to so extensively that it is “impossible to understand an argument without it” (for example, a contract central to the dispute).

PD 51ZH.8(h) further provides that the parties may agree that particular documents should be treated as public for the purposes of the pilot.

PD 51ZH.9 makes clear that where a Public Domain Document refers to another document, the referenced document does not itself become a Public Domain Document unless it independently falls within one of the specified categories under PD 51ZH.8. For example, if a witness statement refers to an affidavit, that affidavit will be considered public by default.

Unlike the US court system, a document does not become publicly accessible merely because it is filed or referred to in open court. It will only be publicly accessible if it falls within one of the specified categories of Public Domain Document, or is expressly designated as such by the court or by agreement between the parties.

Filing requirement 

The pilot introduces a new filing obligation on parties to proceedings in the Pilot Courts. A party who has produced a document that becomes a Public Domain Document must file it on the public-facing side of CE-File within a defined filing period, even where the document has already been filed on the private, party-facing side of the court’s system.

For skeleton arguments and written opening or closing submissions, the filing period is two clear days after the start of the hearing or hearing day at which they are relied upon. For other Public Domain Documents, the filing period runs from the day the document is used or referred to at a public hearing until 16:00 on the fourteenth day thereafter, subject to variation by the court or earlier filing by agreement. Failure to comply may expose the relevant party to the usual sanctions - including contempt of court.

Filing modification orders 

In order to preserve the balance between transparency and confidentiality, PD 51ZH provides for Filing Modification Orders (FMOs). The court may, on its own initiative or on the application of a party or a non-party named or referred to in a Public Domain Document, make an order modifying the default filing obligation. 

An FMO may: (i) prohibit non-parties from obtaining copies of a document by waiving or restricting the filing requirement; (ii) require that the document be filed only in edited or redacted form; (iii) extend or vary the filing period; or (iv) make any other appropriate direction that modifies the default filing requirements under PD 51ZH. 

Where a party seeks an FMO over a document expected to become a Public Domain Document, it must file a written request and a proposed order on notice to the other parties before the filing period begins (that is, before the document is relied on in open court). While that request is pending, the filing period is paused. Once an FMO is granted, any non-party seeking to override or vary it must apply under CPR Part 23. 

PD 51ZH therefore creates a general presumption of disclosure of key hearing materials, tempered by targeted applications for protection where confidentiality can be justified.

Derogations from open justice 

A key issue for commercial litigants going forward will be in what circumstances might the court be willing to grant FMOs.

The Court of Appeal’s recent decision in PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126 reaffirmed the narrow circumstances in which the courts may depart from the principle of open justice by anonymising parties or restricting reporting. Although PMC arose from a clinical negligence claim, its reasoning on anonymity and reporting restriction orders has wider relevance for any civil proceedings in which parties seek to limit the reporting of material aired in open court, including, going forward, pursuant to PD 51ZH.

Drawing on authorities including Scott v Scott [1913] AC 417 and In re S (A Child) [2005] 1 AC 593, the court in PMC reaffirmed that any departure from open justice (whether by sitting in private, anonymising parties or restricting reporting) must be “strictly necessary” to secure the proper administration of justice. The fact that publicity may be reputationally damaging is not enough. The court must be satisfied, on evidence, that the order is required to avoid frustrating or gravely compromising the doing of justice in the particular case. For commercial parties seeking FMOs in the Pilot Courts, the same analytical framework will likely apply.

The pilot effectively shifts the evidential - and costs - burden from those non-parties seeking access to court documents under the current CPR 5.4C(2) regime, to the parties seeking to restrict public access via FMOs.

Practical implications 

Forum choice

The increased ease of public access to hearing documents may influence forum choice. Parties that can issue a claim in a court other than a Pilot Court may be inclined to do so (although if the pilot scheme is a success, it is likely only a matter of time before it applies to other courts, too). Parties may also be more inclined to opt for arbitral or other confidential fora. 

Drafting evidence

The immediate question for commercial clients and their representatives is whether PD 51ZH requires an adjusted approach to the preparation of evidence. It has been suggested that litigators should now assume a public readership when drafting evidence that will be relied on in open court, but this overlooks the fact that even under the existing CPR 5.4C regime, such materials are, in principle, publicly available. The practical change introduced by the pilot is that the administrative hurdle for competitors, journalists and other third parties that wish to obtain copies of evidence in the public domain has been substantially lowered.

Parties may, however, wish to recalibrate the way they present confidential and/or commercially sensitive information in evidence. Sensitive material may, where appropriate, be placed in documents which are not Public Domain Documents by default (namely, exhibits to witness statements) while ensuring that the core narrative in the witness statement (a Public Domain Document) remains accurate and complete.

FMOs and related applications

Parties who anticipate that key documents will contain highly sensitive or confidential material should consider, at an early stage, whether an FMO will be required and factor into trial preparation the cost and evidential burden of seeking such orders. Early, targeted applications, supported by evidence of specific harm, are likely to have better prospects of success than broad, last-minute attempts to shield documents which have already been deployed in open court. 

It would equally be advisable to seek to agree with the other parties at an early stage what documents should be deemed Public Domain Documents. Doing so will avoid wasting the court’s time dealing with uncontested FMO requests at the hearing itself or may assist in narrowing the issues to be dealt with by the court when dealing with contested FMO requests.

Conclusion

PD 51ZH does not displace CPR 5.4C or other routes for non-party access to court documents. Rather, it operates alongside them and is expressly subject to any pre-existing orders, such as anonymity or confidentiality orders. Once filed, Public Domain Documents are accessible to any person, including non-parties, via the Public Access CE-File portal on payment of the usual copying fees. No application to the court and no notice to the parties are required, unless there is an order in force restricting access (such as an FMO). 

The judiciary’s intention is clear. The pilot is designed to strike a principled balance between transparency and confidentiality and to make the open justice principle effective in practice in substantial commercial litigation. Whether PD 51ZH will fully achieve its stated aims will depend on how readily judges in the Pilot Courts are willing to treat additional documents as ‘critical to the understanding of the hearing,’ and on how frequently and successfully FMOs are sought. 

The pilot will test the extent to which a modern, digital court system can move towards routine public access to key hearing documents without undermining legitimate claims to confidentiality in high-value commercial disputes. From 1 January 2026, the starting point in the Pilot Courts will be transparency and open justice. The effect of the pilot is to shift the burden from those non-parties seeking access to court documents under the current CPR 5.4C(2) regime, to the parties seeking to restrict public access to documents. 

For solicitors and their clients, PD 51ZH will require careful thought about evidence, confidentiality, forum, both at an early stage and throughout the life of a case.

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