Open Justice or a snooper’s charter?

On 15 October 2025, the Master of the Rolls and Minister of State for Justice announced that the delayed Public Domain Document Pilot Practice Direction (Practice Direction 51ZH – Access to Public Domain Documents) will come into force on 1 January 2026 (“the Pilot”).

The Pilot greatly expands and widens the categories of documents that can be routinely accessed and downloaded by non-parties from the electronic Court file. It will run for two years (subject to a six-month review) in (a) the Commercial Court and London Circuit Commercial Court of the Kings Bench Division; and (b) the Financial List (Commercial Court and Chancery Division) and if successful will be extended further, most likely to other Business and Property Courts.

Whilst it is already possible for non-parties to obtain copies of these documents, there is currently a requirement for a formal application to be made to Court which may mean that, in practice, relatively few people are willing to spend the time and money to obtain them when there is no guarantee they will be given. An application to Court also requires an interested party to essentially declare their interest whilst downloading publicly available material from the CE file is relatively anonymous.

What new documents will be available under the Pilot Scheme?

Existing Practice Directions 5.4B and 5.4C mean that Statements of Case (principally the Claim Form, Particulars of Claim as well as the Defence and Counterclaim and any Reply to Defence) are currently routinely accessible and can be downloaded from the Court’s electronic file (the CE file). In the case of the Claim Form and Particulars of Claim, these become available once an Acknowledge of Service (or Defence) has been filed.

Under the Pilot, in addition to the above, “any person, including a non-party” can obtain copies of the following Public Domain Documents (defined in paragraph 8 of the Pilot) from the CE-File being:

1. Skeleton arguments;
2. Written opening submissions;
3. Written closing submissions;
4. Other written submissions provided to a judge and relied upon in the hearing;
5. Witness statements and affidavits for public application hearings and trial, not including documents appended or annexed to the statement or affidavit;
6. Expert reports for public application hearings and trial, including annexes and appendices to the report;
7. 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
8. Any document agreed by the parties to be Public Domain Documents.

The accompanying guidance (“the Guidance Note”) to the Pilot confirms that:

1. witness statement exhibits do not fall within the scope (whereas appendices and annexes to expert reports are caught); and
2. in respect of the Court’s power to order any documents not listed above that are deemed critical to the understanding of the hearing to be made public, this is targeted at documents where it would be artificial to regard a document as not being public (e.g. where a document has been read out in open court or where it is referred to so extensively that it is impossible to understand an argument without it).

The Pilot (paragraph 9) also clarifies that if a Public Domain Document refers to another document, that other document does not by default become a Public Domain Document unless it is a document referred to specifically in the list of documents above.

What is required when filing?

The Pilot includes new filing requirements placing the onus on the parties to comply with these rules and file Public Domain Documents within the Filing Period and with particular CE-File designations (set out at paragraph 10 of the Pilot). Please note that these filing requirements apply irrespective of whether the document has already been filed on the CE-File.

When will the new categories of documents become publicly available?

The requirement to file Public Domain Documents does not affect any other obligation to file a document at Court using the CE-File.  In other words, documents routinely filed at Court in accordance with other provisions of the Civil Procedure Rules (“CPR”) (e.g. an application form together with a supporting witness statement) will need to be filed again if they are Public Domain Documents (with the relevant CE-File designation) at the time of the Filing Period.

The “Filing Period” is:

• For documents other than the skeleton or written opening/closing submissions: the period beginning on the day when the relevant document is used or referred to in a hearing and ending at 16:00 on the fourteenth day after that (unless the court orders otherwise or parties agree to earlier filing);
• For skeleton arguments and written opening and closing submissions: two clear days after the start of the hearing or hearing day at which the skeleton argument or written submission is relied upon to file the relevant document;
• If the court orders otherwise or the parties agree to earlier filing: the period beginning on the date of the relevant Order or agreement and ending at 16:00 on the final date ordered or agreed for the earlier filing.

This places an additional burden on the parties filing (or re-filing) these documents to calculate deadlines and comply. For longer hearings, the Guidance Note acknowledges that there will need to be Orders made at either a case management conference, a pre-trial review or at the start of trial for staged filing of these documents.

The consequence of not filing Public Domain Documents in accordance with the requirements of the Pilot is that the Court may order that parties file the documents (paragraph 11).

Restricting access to Public Domain Documents

If a party wishes to seek to restrict or modify access to Public Domain Documents, it will be possible to seek a Filing Modification Order (“FMO”). The following options are available:

1. Complete restriction – a non-party may not obtain a copy of the document;
2. Waiving or restricting the filing requirement – for example, there is no requirement to file one or more of the Public Domain Documents;
3. Edits or redactions made to the document(s) before being uploaded to CE-File;
4. Extending or amending the filing period; or
5. Any other order in respect of the document that the court sees fit.

An application for an FMO can be made by any party or by a non-party who has been named or referred to in a Public Domain Document (the Guidance Note gives the example for a non-party being where a party’s evidence “says something derogatory about them or has the capacity to harm their interests”). The Guidance Note highlights that applying for a FMO is designed to be a “relativity informal process as part of the trial or hearing”. 

The procedural steps for requesting an FMO are as follows:

• For parties: as soon as practicable and before the commencement of the expected Filing Period they must file on the CE-File website (and where applicable with the clerk to the judge who presided over the hearing) a written request for an FMO on notice to the other parties containing reasons (and where necessary, evidence) in support of the proposed FMO (paragraph 15).
• For non-parties: an application notice under CPR 23, on notice, to the parties as soon as practicable and before the commencement of the expected Filing Period for that document (paragraph 16).

If an FMO is requested, then the Filing Period does not commence until the request or application has been determined and the document should not be filed (paragraph 17).

Where a document has already become a Public Domain Document (i.e. it has been published) then both parties and non-parties will have to apply under CPR 23, on notice, to the other parties and any person named in that document who has previously applied for an FMO (paragraph 18).

In what circumstances will an FMO be granted?

The Pilot does not offer specific guidance as to what will be acceptable reasons for an FMO to be granted. However, the Guidance Note sets out that “… since the Pilot reflects the law on public domain documents, the cases (certainly in Phase 1 – Commercial Court, London Circuit Commercial Court and Financial List cases) where it would not be appropriate to make the documents available will be rare.” (paragraph 25)

It gives an example of where there are concerns about confidential material contained in relevant documents stating that:

“…In such cases the party can explain its concerns to the judge hearing the trial or application, and the judge can rule accordingly – either for filing with redactions, or for no filing pending any application by an interested party, when the question of the balance between the protected interest and public access can be weighed appropriately – and any costs implications (e.g. as to cost of redactions) can be grappled with.” (paragraph 24)

It is therefore uncertain whether concerns as to confidentiality of information contained in, for example, witness statements, would be sufficient to resist public access to the documents albeit there are indications in the Guidance Note that an FMO might be made “on the basis that redactions to protect confidentiality would be costly and time consuming and that the document is unlikely to be of interest to outside parties”

It seems likely that similar principles may be invoked as were applied by the Supreme Court in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 when it considered whether to allow a non-party access to documents under the current regime:

“45…the Court has to carry out a fact-specific balancing exercise. On the one hand will be "the purpose of the open justice principle and the potential value of the information in question in advancing that purpose".

46.  On the other hand will be "any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others". There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings. But even then there may be good reasons for preserving their confidentiality, for example, in a patent case.

47.  Also relevant must be the practicalities and the proportionality of granting the request…”

Even if an FMO is made, can a non-party still obtain a copy of the withheld or redacted document?

Yes. The Pilot sets out that even if an FMO is made “a non-party may apply for a copy of any document or an unedited copy of any document to which the order applies by making an application under Part 23 on notice to all parties and to any person named in that document who obtained the FMO in relation to that document.”

Clyde & Co commentary

The Pilot comes following comments by the Supreme Court in the abovementioned judgment[1] where the Court urged “the bodies responsible for framing the court rules in each part of the UK to give consideration to the questions of principle and practice raised by this case (paragraph [51])”.  The impact of the Pilot is to effectively reverse the current and existing position whereby “…it is for the person seeking access [to documents] to explain why he seeks it and how granting him access will advance the open justice principle.” Instead, it will be for litigants to persuade the Court as to why a document should not be publicly accessible in accordance with the open justice principle.

Whilst making public access to material in litigation easier is clearly the intended direction of travel, commercial parties and professionals will be further concerned at the prospect of sensitive and commercial material being so easily and widely available beyond the Court room. It seems likely to renew calls to consider amending dispute resolution clauses in commercial contracts and engagement letters to adopt a more confidential procedure such as arbitration (where parties’ information is kept confidential). This may be all the more so where one party’s sensitivity to confidential material being made public could be used against it by an opponent as part of their litigation strategy.   

In practical terms for existing litigation, parties may need to consider (a) whether to apply at an early stage for proceedings to be heard in private if there are genuine and pervasive confidential features of the litigation (noting that the Pilot does not apply to such cases); (b) when drafting documents that fall under the definition of Public Domain Documents, the wider public readership (including media, regulators and other future litigants) and what information may be strictly relevant to the litigation; and (c) whether to seek an FMO at the appropriate time.