Practice Direction 51ZH and the New Era of Public Access to Documents in Litigation

The start of 2026 marked a new era in the civil courts’ approach to the principle of open justice with the introduction of the Access to Public Domain Documents Pilot under Practice Direction 51ZH ("the Pilot"). 

The Pilot represents a departure from the previous position which required non-parties to court proceedings to apply to the court for access to certain court documents. Under the new regime, parties and their representatives must proactively upload specific documents to the public-facing side of the court's CE-file platform making them readily available for public access. The documents to which this Pilot applies include skeleton arguments, witness statements, expert reports and documents exhibited to expert reports.

Initially, the Pilot has been introduced only to the Commercial Court, London Circuit Commercial Court (KBD) and the Financial List and will run for a period of two years. The Pilot will therefore not immediately affect all proceedings at this stage but the implications cannot be understated, particularly if the scheme is to be expanded should the Pilot prove successful.

With the default position now favouring open justice, concerns are inevitably heightened in regard to commercially sensitive information, reputational risk for witnesses and experts, and media scrutiny. The Pilot contains mechanisms designed to address these concerns, with the principal safeguard being the Filing Modification Order (‘FMO’).

An FMO is an order made under paragraph 13 of PD 51ZH in relation to a document that has become, or would otherwise become, a Public Domain Document under paragraphs 7 and 8. It allows the court to modify the standard filing and access position, for example by permitting redactions or, in exceptional cases, dispensing with filing altogether.

Crucially, existing confidentiality orders remain unaffected. The Pilot does not override orders already made under CPR 39.2, and it does not apply to hearings being held in private. Parties therefore retain the ability to rely on established confidentiality protections where appropriate.

For public hearings, however, where a party does not wish to file a document in full, or at all, due to confidentiality concerns, it must apply for an FMO in writing, supported by reasons and on notice to the other parties, before the relevant filing deadline. The court may order redactions or defer filing pending determination of the application, or act of its own initiative, however the current guidance makes clear that complete non-disclosure will be rare.

Importantly, non-parties named or referred to in a Public Domain Document may also apply for an FMO by an application notice under CPR Part 23. This provides an important safeguard for witnesses, experts and third parties. 

Advance preparation will be critical. Parties will now need to identify at an early stage whether proceedings fall within the Pilot and review documents likely to enter the public domain. Sensitive commercial material or information giving rise to reputational concerns should be flagged promptly and at any early stage so that any necessary FMO can be applied for in good time, avoiding last-minute rejection and additional strain on court resources.

As a final consideration, for parties particularly concerned about publicity or sharing of commercially sensitive information, mediation or arbitration may become a more attractive option, with public legal proceedings to be avoided altogether.

Although it has always been possible to access certain court documents, by the Pilot removing the requirement for a non-party to make an application to gain such access, there is effectively no barrier to the information contained in those documents being obtained and shared by the public. Whilst this further promotes access to justice, the parties to relevant proceedings will now need to consider, right from the outset of a claim, whether there is information that is key to the issues in a given dispute, that might become subject to the requirement to be made public.

Parties to potential, or ongoing, legal proceedings should be advised of the implications of the Pilot and the possible workarounds. Should you require such advice, our commercial litigation team can assist. Please get in contact with us via the enquiry form above.

This blog was co-authored by Rachel Jones and Sophie Connery.