As per CPR 51.2, PD51ZH on access to public domain documents is coming into force on 1 January 2026. Originally, the scheme to widen public access was set to begin in October 2025 however, a change in Lord Chancellor and concerns raised by practitioners have caused a delay.
The Pilot Scheme aims to further the principle of open justice in the civil courts by testing a simpler protocol for accessing main documents that enter the public domain through their use in court proceedings. As Lady Hale cited the renowned Lord Hward CJ in R v Sussex Magistrates, Ex p McCarthy [1924] 1 KB 256,259 “…justice should not only be done, but should manifestly and undoubtedly be seen to be done.” (Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38).
Until now, the default position has been making that an application must be made to obtain the documents in question. Under the new scheme, however, the default position will be the provision of identified documents making them more readily accessible to third parties.
Scope of the New Pilot Scheme
The pilot period will last two-year and will initially cover only the Commercial Court and London Circuit Commercial Court of the King’s Bench Division and the Financial List (Commercial Court and Chancery Division).
Practice Direction 51ZH
The PD defines public domain documents broadly. Accordingly, the following will be accessible: parties’ skeleton arguments, written opening and closing submissions, other written submissions provided to a judge and relied upon in the hearing, witness statements (including those relied upon as evidence in chief at trial and those relied upon at a public hearing of an application), expert reports and their annexes, any other document or documents critical to the understanding of the hearing ordered and any documents agreed by the parties to be Public Domain Documents.
These categories of documents have historically been the ones most commonly sought by non-parties at common law. However, documents either read by the judge in private or referred to in court are not considered as Public Domain Documents for the purposes of the scheme. Nonetheless, the exclusion of these two categories is further compensated by the judge’s power to order the treatment of the document as a Public Domain Document – thereby triggering the filling requirement and by the parties’ agreement.
Where a hearing is conducted in private the scheme will not apply.
How to grant Public Access
The pilot will be operated through CE-File, the Court’s existing filing system. Parties will be required to file documents by category which will then enter “public view” on CE-File within a specified Filing Period. Para.10 sets out the relevant designations to be used for such filings.
The Filing Period varies according to the category of the document. The relevant periods can be found under para.6 of the PD51ZH.
Given that publication is becoming the default position, where a party wishes not to file a document, or to file only part of it, they will be required to seek an order to that effect before the filing deadline for a “Filing Modification Orders” (“FMOs”).
The new pilot scheme will undoubtedly allow a wider audience to access court documents and enhance transparency. However, by default proceedings are public, we believe that the number of FMOs during this pilot period will be an important factor in assessing the long-term applicability of this scheme.
