Public Domain Documents Pilot: documents which are ‘likely to inform the public’s understanding of court proceedings’ to be made public from 1 January 2026

From 1 January 2026, the public will have automatic access to certain documents used in public hearings in civil proceedings in the English Commercial Courts under a two-year pilot scheme (the “Pilot”). The Pilot aims to promote the principle of open justice and implements one of the recently published key objectives of the Transparency & Open Justice Board. 

While the Pilot confirms the common law position, set out in the UK Supreme Court decision in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, that the public has the right to access documents placed before the court and referred to in a public hearing, it is not without controversy. In this article we take a look at which documents will be made public, whether a party is able to restrict publication of certain documents and potential implications for parties once the Pilot begins. 

Current Position

Documents available to the public from the Court file are currently limited to statements of case and judgments or orders made in public, and, if the matter goes to trial, during the trial the public may access witness statements relied on in court under CPR 5.4C or under the Court’s inherent jurisdiction. Following Cape Intermediate Holdings Ltd v Dring non-parties may also request from the court permission to access documents attached to a statement of case or witness statement, expert reports, skeleton arguments and documents put before the Court and referred to during the hearing. This rule remains unchanged. The Pilot will address those documents that currently are not available to the public or only with the permission of the Court, and will streamline the process for accessing them.

The Pilot therefore changes the default position from having to apply for publication of the documents to a mandatory provision, pursuant to a new Practice Direction 51ZH and accompanying Guidance. According to the Guidance, the intent is only to capture documents which enter the public domain as a matter of law without imposing an undue burden on parties or the Court.

When and for how long will the Pilot run?

The Pilot will run for 2 years from 1 January 2026 to 31 December 2027 (the “Pilot Period”), with a review after six months likely. The Pilot will only apply in the English Commercial Court and London Circuit Commercial Court of the Kings Bench Division and the Financial List (the “Pilot Courts”), but it may be extended to further courts in future.

Which documents will be made public?

Under the Pilot, certain documents will be deemed “Public Domain Documents” which must be made available to the public. Public Domain Documents include skeleton arguments, written submissions, witness statements and affidavits (not including exhibits), expert reports (including annexes and appendices) and any documents agreed by the parties to be a Public Domain Document. Crucially, the document must be used or referred to at a public hearing in the Pilot Courts during the Pilot Period – irrespective of whether the proceedings are new or existing prior to the start of the Pilot. 

Public Domain Documents also include any other document critical to the understanding of the hearing and ordered by the hearing Judge to be a Public Domain Document (PD 51ZH.8(g)). According to the Guidance, this will only apply where it would be artificial to regard a document as not being public, for example where it has been read out in open court (in full or nearly in full) or where it is referred to so extensively that it is impossible to understand the argument without it. It is not intended to capture all documents referred to at trial or in skeleton arguments. The Guidance gives two examples which could be caught by this: (i) a contract which is the centre of an argument about construction of a single term in the context of multiple other terms within the same contract; and (ii) a letter which is essentially read out in full and repeatedly referred to.

Underlying documents are not included. These are documents either read by the judge in private or the exhibits to witness statements/affidavits as they often annex a great deal of material which a judge would not be expected to read, and which would not be referred to at the hearing. However, annexes and appendices to expert reports must be filed because, according to the Guidance, they frequently include the main results of an expert’s evidence or material required to comprehend the report.

Additionally, documents referred to in Public Domain Documents are not themselves deemed Public Domain Documents unless they meet the test referred to in PD 51ZH.8 (i.e. they are themselves witness statements, affidavits,  skeleton arguments, written submissions, expert reports, documents agreed by the parties to be a Public Domain Document  or  documents critical to the understanding of the hearing which are ordered by the Judge to be Public Domain Documents). 

When must Public Domain Documents be filed (the “Filing Period”)?

Copies of skeleton arguments and written opening and closing submissions must be filed two clear days after the start of the (i) hearing or (ii) the hearing day at which the skeleton or written submission is relied upon. 

Copies of all other Public Domain Documents must be filed within the period beginning on the day the relevant document is used or referred to in a hearing until 4pm on the 14th day after that. The Court may order an alternative Filing Period, and parties may agree to an earlier filing, in which case, the documents must be filed within the period beginning on the date of the Order or agreement and ending at 4pm on the final date ordered or agreed.

Public Domain Documents must be filed in a specific location on CE-File separately to where they are filed with the Court for use in hearings. By way of example, a skeleton argument will have been filed with the Court two days before the hearing on CE-File (in most cases) but then will need to be filed separately on CE-File as a Public Domain Document two days after the start of the hearing or hearing day at which it is relied upon, as above.

For longer hearings, the Court will likely make Orders at the start of a trial, at a case management conference or at a pre-trial review for staged filing.

Can parties restrict publication of certain documents?

While the parties can apply to restrict access to publication, the onus is on them to explain to the Court why such access should not be given. If successful the Court may make a Filing Modification Order (“FMO”) in relation to a document that has become, or would be expected to become, a Public Domain Document. 

FMOs can modify the filing requirement in several ways, including: preventing a non-party from obtaining a copy of that document; waiving or restricting the requirement to file; requiring filing only after the document has been edited or redacted; extending or otherwise amending the Filing Period; and making such other Order as the Court thinks fit, for example, ordering that there is no requirement to file pending an application by an interested party. Additionally, FMOs can be ordered by the Court of its own initiative or requested by a non-party named or referred to in the document. 

Non-parties may still apply for access to a document subject to an FMO – they must make an application under Part 23 on notice to all parties and to any person named in that document who obtained the FMO. Additionally, the obligation to file does not affect any Orders regarding access to documents, including those imposing confidentiality clubs or other anonymity regimes.

Interestingly, the Guidance says that the cases where it would not be appropriate to make the documents available will be rare as the Pilot reflects the current law on Public Domain Documents.  FMOs should only be applied for where necessary.

Non- Compliance

Failure to file Public Domain Documents can lead to an Order requiring the party to file, and failure to comply with the Order risks sanctions by way of contempt of court.

Potential implications

The full impact of the Pilot remains uncertain, but we have outlined some key concerns below which parties may wish to consider:

• Volume of documents made public: The Pilot will run in the Commercial Courts, where vast amounts of commercial and financial documentation are often used in long and complex hearings. Parties may well be sensitive to this information being readily available.  As the Court will be able to order public disclosure of any document critical to the understanding of the hearing and which is repeatedly referred to or read out, there may be increased costs and satellite disputes as the parties debate the types of documents these include and the extent to which they must be referred to in order for disclosure to be ordered.  The Pilot may place an extra administrative and financial burden on the parties as a result. It will be interesting to see the way the Court deals with this. Some have questioned why the Pilot is starting in the Commercial Courts at all, (as opposed to the Administrative Court) when the aim is to increase access to justice.
• Publicity risks and the media: Connected to the above, the media will have easier access to more extensive information from court documents than in the past and this may be problematic for some clients. In cases where information may be subject to FMO’s non-parties may make applications challenging these.
• Attractiveness of arbitration and mediation: Parties requiring complete confidentiality may opt for other forms of dispute resolution which avoid the Pilot. Arbitration and ADR will be attractive to clients who may be facing lawsuits in other jurisdictions where expansive disclosure is not the norm.
• International and third-party claims: Conversely, foreign litigants may use the public disclosure of documents in proceedings in the Pilot Courts as a means of back-door pre-trial disclosure in proceedings in their own jurisdictions.
• Court / Forum shopping: Parties requiring complete confidentiality may avoid the Pilot Courts or even the jurisdiction altogether (see arbitration and mediation discussed above). However, as the Pilot will apply to claims already issued, bringing a claim in an alternative court may not help if the jurisdiction of the Pilot is extended, as expected, to all the Business & Property Courts.
• Strategy: The Pilot may influence parties’ strategy in proceedings, for example, in relation to the kinds of information to include or exclude from documents which will be made public and how it may affect the reputation of a party or its opponent. It may also be helpful in settlement discussions ahead of a public hearing to avoid the risk of public disclosure. 

With thanks to Eloise Barry for her help in drafting this article.