A significant shift has occurred this year in the transparency landscape of English commercial litigation. Under new Practice Direction 51ZH, “Access to Public Domain Documents” (“PD51ZH”), a new pilot scheme now operates in the Commercial Court, the London Circuit Commercial Court and the Financial List, widening public access to documents deployed in proceedings. The pilot will run for two years.
The principles underpinning PD51ZH are not new, as pursuant to the court’s inherent jurisdiction, the default position following Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 was that the public may have access to parties’ written submissions and arguments, and other documents placed before the court and referred to during a public hearing. However, the public did not have the right to automatically be granted access to such documents. Rather, non-parties could obtain certain documents from the court file as of right, for example, statements of case, and orders and judgments made in public, on payment of a fee. However, access to a broader category of documents, such as exhibits to statements of case, written submissions, witness statements and expert reports, required an application, with the court then carrying out a balancing exercise to determine whether, weighing considerations of open justice against privacy, access should be granted. This broader category will now be accessible as of right.
Accordingly, while PD51ZH has not changed the principles of open justice in relation to access to court documents, it has significantly affected the practicality and ease of accessing court documents, by shifting from an application-based regime to a default position of proactive disclosure via CE-File.
Parties will be required to file “public domain documents” on the public space on the court’s electronic filing system, making them automatically visible to the public. PD51ZH identifies public domain documents as:
- 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 (albeit not exhibits to those documents);
- 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.
The court retains full power to protect confidential material, grant anonymity orders, waive the obligation to file public domain documents, and/or grant other Filing Modification Orders (“FMOs”). However, as outlined above, strategically the burden has shifted: instead of a third party needing to justify access, parties to the litigation must justify why access to documents, and information within them, should be restricted.
Exemptions to the requirements under PD51ZH are limited, with the filing of publicly available documents being necessary except in proceedings where the relevant party is not legally represented and has not already filed a document in those proceedings using CE-File, where confidentiality orders are in place, or where documents are referred to in private hearings.
In terms of the measurable impact thus far, at a recent panel event in June 2026 hosted during London International Disputes Week, Lady Justice Cockerill, who chairs the relevant CPRC subcommittee, discussed the introduction of PD51ZH, noting that while it had not resulted in wholesale change to the landscape, the number of documents accessed by the public had approximately doubled from 2025 to 2026, with some of the most frequently accessed documents being skeleton arguments and expert reports.
Further, in the recent June decision of Various Claimants v Entain Plc [2026] EWHC 1511 (Comm), the Court ruled that, in certain circumstances, even where an FMO is granted and the obligation to file public domain documents waived in recognition of the need to protect the legitimate interests of others—in that case, those engaged in contemporaneous criminal proceedings arising from the same events—it may nevertheless be appropriate for parties to file a ‘placeholder’. This would provide details of the documents that would have been filed but for the FMO and specifically draw attention to the rights of non-parties to apply for access to those documents.
Transparency and reputational exposure
The most immediate, and most obvious, effect of PD51ZH is enhanced visibility. Documents once accessible by default to only those directly involved in proceedings may now be downloaded by competitors, activist investors or commercial counterparties.
The potential implications for litigating parties are significant and include risks around the mandatory disclosure of sensitive information concerning assets or ongoing litigation abroad. The PD51ZH era therefore requires earlier and more deliberate confidentiality planning.
Parties must consider at the outset whether redactions or FMOs will be necessary. However, applications for FMOs will still require time, argument and potentially additional hearing allocation. Depending on their scope, redactions will impose administrative burdens and carry costs consequences—either by way of additional fees for redaction or through costs incurred as a result of making and/or resisting applications for FMOs or modifications.
Finally, the additional transparency reflected in PD51ZH may also influence forum selection, with some parties seeking to avoid the English courts precisely because of the expanded public access regime. Others may choose the English courts solely because they provide an opportunity to ‘out’ information about an opponent.
The arbitration effect
Confidentiality is typically considered one of the main advantages of arbitration over litigation, with the majority of respondents to the 2025 Queen Mary University of London survey in favour of maintaining confidentiality in arbitration.
Arbitration is generally conducted privately, and confidentiality may extend to evidence, pleadings and awards, subject to applicable law and recognised exceptions.
For parties who are keen to preserve confidentiality or reduce the risk of sensitive information making its way into the public domain, the comparative privacy of arbitration may appear increasingly attractive. For instance, boards concerned about reputational management, listed entities sensitive to market reaction, and businesses operating in highly competitive sectors may all view PD51ZH as strengthening the case for arbitration.
Planning ahead
Overall, the ongoing pilot scheme has, by adjusting the practicalities of access to court documents, altered the litigation landscape. Parties will now need to consider their approach to retaining confidentiality more rigorously. Accordingly, integration of confidentiality strategy into live and forthcoming matters is essential. While the rules governing FMOs are clearer than before, parties must act early—often before documents are filed—to secure protection.
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