Open justice - The new court pilot and access to court documents

PD 51ZH brings the Courts of England and Wales a step towards the US model of more public access to court documents. The move toward greater transparency is intended to close the “open justice gap” but it also raises significant questions, particularly for legal representatives and clients. Some of the aspects that PD 51ZH will unveil include issues around confidentiality and litigation strategy. Will this be a further point of attractiveness for arbitration?

What is the Pilot Scheme?

PD 51ZH has received approval from the Civil Procedure Rules Committee and is set to commence on 1 January 2026. Key features of the pilot include:

• Scope: PD 51ZH applies to hearings and trials in the Commercial Court, London Circuit Commercial Court and the Financial List but not initially to other Business and Property Courts. It will not apply to ex parteproceedings, hearings which take place in private, or where there already exists confidentiality or anonymisation orders. PD 51ZH also does not affect the  operation  of  CPR  rule  4B  and  5.4C,  Practice  Direction  5A paragraph 4.2A, or Practice Direction 5C.
• Documents made public by default: certain core documents used in open hearings—such as witness statements (excluding exhibits), expert reports (including exhibits), skeleton arguments, opening and closing submissions, and documents “critical to understanding” the case will be added to a public‐facing side of the CE‑File (the Court’s electronic filing system).
• Redactions and confidential documents: where documents contain genuinely confidential or commercially sensitive information, it will be possible to seek Filing Modification Orders (FMOs) to redact or withhold parts of those documents. But transparency will be the default position. FMOs can be applied for by all parties to the proceedings, and non-parties referenced in a Public Domain document. The court can also make an FMO at its own initiative.
• Duration: PD 51ZH is intended to run for an initial period of two years, between 1 January 2026 and 31 December 2027. It has been confirmed that PD 51ZH will apply to both new proceedings and to cases already listed in the Commercial Court and Financial List.  This means that existing proceedings currently ongoing in the relevant court divisions will be subject to the new Practice Direction from 1 January 2026.
• Sanctions for non-compliance: parties will be required to re-file skeleton arguments, witness statements, expert reports, and other “Dring Documents” under a new “Public Documents” category on CE-File. PD 51ZH allows for a court order to be made compelling a party to comply with the filing requirements if they have failed to do so. Subsequent failure to comply with this order may result in contempt proceedings.

Background to the Pilot Scheme

Under CPR 5.4C(2), any person can apply, for a fee, to access claim documents, such as statements of case (but not their appendices).

The Scheme builds on the Supreme Court’s decision in Dring v Cape, which held that non-parties to a claim can apply to view documents placed before the Court and referred to during a hearing.

However, non-party applicants had to justify their request for court documents by showing it is in the interest of open justice. The Court would then balance this against any potential harm to the judicial process or others’ legitimate interest. Therefore, non-parties could access Court documents but there are certain hurdles to overcome. It is not the default position.

Practical considerations

While transparency brings benefits, it also introduces risks. Some practical considerations for parties and legal representatives include:

1. Confidential or sensitive information exposure: even with FMOs and redaction orders, there is risk of sensitive commercial information entering the public domain unintentionally. Examples include: technical and price sensitive details, trade secrets, and internal negotiations.
2. Satellite litigation over redactions: disputes about what qualifies for redaction may become more frequent, leading to increased costs and contested applications.
3. Procedural and resource burden: the need to review potentially large amounts of documentation in advance, build redaction strategy, and possibly re‑file or adjust pleadings. Costs could be frontloaded and lead to delay.
4. Collateral use: once documents are in the public domain, they can be accessed and distributed globally. Competitors, media, or regulators will have access.
5. Uncertainty around “Critical Documents“: what counts as “critical to understanding the case” is not yet defined and leaves room for variation in judicial interpretation.
6. Division shopping: where PD 51ZH currently applies to the Commercial Court and the Financial List, parties may issue claims in alternative Court divisions. Conversely, parties may challenge claims issued outside the Commercial Court and Financial List where a tactical advantage may be gained.

So far, theoretically, PD 51ZH seems to be a step forward towards closing the open justice gap. It is unclear, however, how the interaction of many and diverse interests would interact with each other. It is also unclear, how essential principles such as confidentiality and litigation strategy will or could be safeguarded. PD 51ZH will be introduced soon and there are still several questions to answer. Time will tell.

Is Arbitration the answer?

Given the increased transparency PD 51ZH introduces, arbitration may become a more attractive route for parties who seek to maintain confidentiality and control of the process.

Unlike the court system under the pilot scheme, arbitral proceedings are confidential unless the parties agree otherwise. Documents are not publicly filed or accessible in the same way.

The final hearing is confidential and parties to an arbitration can negotiate the scope of document disclosure, confidentiality of evidence, and whether any parts of the proceedings or documents can or should be made public.

Whilst PD 51ZH embraces transparency and open justice, parties may prefer arbitration to resolve disputes in the hope of preserving confidentiality and control.

 If you would like further information and advice about the impact of the new court pilot scheme, please contact one of our Dispute Resolution solicitors by email, or call 03333 231 580.