Letting in the light?
The procedure governing non-party access to documents in Commercial Court proceedings has materially shifted since 1 January 2026. Under the two-year Public Domain Documents Pilot Scheme (the “Pilot Scheme”) governed by Practice Direction 51ZH (“PD51ZH”) certain documents deployed by parties in open proceedings in designated courts are by default available to non-parties on request via the public-facing side to the CE-File platform.
It remains too early in the Pilot Scheme period to comprehensively assess the regime’s practical impact in improving meaningful transparency to the public or in any behavioural change of litigating parties. However, there is an emerging direction of travel: digital access to court materials is becoming significantly more open with reduced procedural barriers. The Pilot Scheme’s potential to reshape how parties approach pleadings, evidence and overall litigation strategy, with a corresponding recalibration of the risks inherent in pursuing proceedings in the Commercial Court also seems inevitable.
A summary of the key changes and practical implications of the Pilot Scheme can be found here.
The policy shift: from principle to practice
The Pilot Scheme is best understood as an operationalisation of the policy principle of open justice in the context of modern litigation. It gives real world effect to the default position clarified by the Supreme Court in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 381 that materials deployed in public hearings are already in the public domain and should be accessible in the interest of allowing the public to observe the administration and quality of justice – systematically and in individual cases.
Facilitating access under the Pilot Scheme recognises that key legal argument and evidence in civil litigation are increasingly set out in written material, without which it is difficult to follow a court’s judgment. As Mr Justice Nicklin (Chair of the Judiciary’s Transparency & Open Justice Board) observed at a recent lecture, in modern civil justice, if open justice does not follow the documents, “it risks becoming an illusion rather than a reality”.2
Under the Pilot Scheme, parties are now required within specified time periods to place key written material (skeleton arguments, written submissions, witness statements without exhibits, expert reports with exhibits, and other key contemporaneous documents) directly onto a public-facing court file, subject to the terms of any Filing Modification Orders (“FMO”) or other existing confidentiality regime. Public access is granted to those documents without notice to the parties and, as is otherwise required under CPR 5.4C2, without the need to formally apply to the court. This mechanism materially reduces the delay and procedural uncertainty previously associated with non-party access requests, whilst maintaining judicial oversight through FMOs.
Early lessons
Early data and some judicial commentary provide some preliminary insights into the operation and effectiveness of the Pilot Scheme.3
Increased access to certain documents
Initial indications suggest a material rise in requests for documents, and the demand appears to be concentrated on skeleton arguments, written submissions, and expert reports, rather than factual witness evidence.4 The focus on the written arguments is not surprising and broadly reflects pre-existing informal practice of providing skeleton arguments to the media at public hearings. The demand for expert reports is new; greater availability of expert reports could over time allow legal representatives to improve expert selection with more informed review, testing and deployment of expert evidence.
Approach to Filing Modification Orders
A key question coming into the Pilot Scheme was how the courts would approach the balancing exercise in granting FMOs. Only one reported decision has so far dealt with an FMO application, in Various Claimants v Entain Plc [2026] EWHC 1511.
In Entain, Mr Justice Trower confirmed that in exercising a discretion when granting a FMO to modify the rights which third parties would have otherwise have had under PD 51ZH, the court must balance “on the one hand the value of the information in question in advancing the open justice principle against, amongst other things, the risk of harm which uncontrolled disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.”5
The claimants in that case were investors pursuing shareholder claims under s.90 and 90A of the Financial Services and Markets Act 2000, in respect of asserted false and misleading statements arising out of alleged historic misconduct and failure to prevent payment of bribes in Entain’s business in Turkey. The Crown Prosecution Service was pursuing a parallel criminal prosecution against several individuals named as ‘persons discharging managerial responsibilities’ in the claimants’ pleadings.
In assessing whether to grant an FMO to waive the filing requirement of relevant Public Domain Documents, Trower J found that the risk that information disseminated via a public access request might prejudice the fair conduct of the criminal proceedings weighed heavily in the balance (notwithstanding a concurrent reporting restrictions order in place).6 When considering whether appropriate redactions could be applied to case materials, the court took into account – in line with advice in PD 51ZH Guidance Note paragraphs 7 and 19 – concerns as to whether there was any undue burden in determining what information to redact, particularly in the position of the CPS as a non-party.7 The appropriate balance would instead be to grant a waiver of the filing requirement but direct the parties under paragraph 13(e) of PD 51ZH to include a placeholder on the public access CE-Files identifying information about those documents and signposting the rights of any non-party to object by application.8
Whilst the judgment is unique to the facts (the pursuit of large-scale civil proceedings in parallel with an overlapping criminal prosecution, where the civil parties were not parties to the criminal case), it helpfully clarifies that the balancing exercise for FMOs is broadly consistent with existing principles of open justice as set out in Dring and was adopted in respect of applications under CPR 5.4C. Importantly, the judgment makes clear that FMOs remain the exception to the default position, illustrating the type of material prejudice arising from disclosure that would be required to persuade the court to depart from the legal presumption of public access.
Looking ahead: behavioural change
To date, the Pilot Scheme has largely involved cases already in the system at the point of implementation. As the volume of cases under the Pilot regime increases and reach substantive hearings, and as practitioners gain further experience of its operation, a clearer picture will emerge as to how the anticipated commercial risks for civil litigants are being managed in practice. Over time, it is reasonable to assume that parties adjust the form and content of pleadings, written submissions and evidence in anticipation of wider access to those materials. Data to be published by the judiciary at the end of the Pilot Scheme will provide key metrics on the type and rate at which public domain documents are being publicly requested, which may further influence how court materials are drafted, should the Pilot be extended.
In terms of opportunities, parties and legal representatives may also proactively exploit greater information access to improve case strategy. In principle, as the volume of accessible material grows, there is increasing potential for data analytics to be run on arguments, evidential approaches and outcomes, supporting more informed assessment of merits and litigation risk. Taken together with the heightened reputational risks arising from possible greater reporting and market scrutiny, it will be instructive to see how, if at all, these matters influence settlement dynamics.
1 Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, [42]-[43] (Lady Hale)
2 Mr Justice Nicklin, ‘Open Justice and the Missing Dimension: Access to Documents in Civil Proceedings’ (Speech, Newcastle Business and Property Courts Forum, 11 May 2026).
3 The authors have identified reported decisions that substantively address PD 51ZH: Merck KGaA v Merck Sharp and Dohme LLC [2026] EWHC 1113 (Ch) and Various Claimants v Entain Plc [2026] EWHC 1511. Bradley v CM [2026] EWHC 125 (Fam) confirms that the Pilot Scheme does not currently apply in the Family Court.
4 Data compiled by the Commercial Court Listing Office, as reported in Joanne Faulkner, ‘Court Pilot Sees Demand Amid Uncertainty Over Compliance’ Law360 UK (2 September 2026).
5 Various Claimants v Entain Plc [2026] EWHC 1511, [18].
6 [20].
7 [23].
8 [24]-[25].
