Improving transparency: new rules on public access to documents in proceedings

From 1 January 2026, new rules will come into force in the Commercial Court, London Circuit Commercial Court and Financial List with the aim of improving public access to documents in civil proceedings. The new rules will require legal representatives to add various categories of documents referred to at public hearings to the Court's electronic file, meaning they will be, by default, available to the public. The new rules are governed by Practice Direction 51ZH and are part of a 2-year pilot scheme aimed at improving transparency and open justice in the civil courts.

 The new Practice Direction does not change the general common law position that documents become public once mentioned in open Court, but will make it much easier for members of the public to obtain those documents as legal representatives will be required to file what are known as 'Public Domain Documents' at Court within a specified timeframe after hearings.

What does it mean in practice?

From 1 January 2026, the following categories of documents will fall within the scope of "Public Domain Documents":

• Skeleton arguments;
• written opening and closing submissions (and any other submissions provided to a judge);
• witness statements and affidavits, excluding exhibits;
• expert reports, along with their appendices and annexes (including those for trial and those relied upon in relation to an interim application);
• 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
• any documents agreed by the parties to be Public Domain Documents.

Once a document becomes a Public Domain Document, it must be filed at Court (irrespective of whether that document has already been filed). Skeleton arguments and other written submissions must be filed two clear days after the start of the hearing at which the document is relied upon. All other Public Domain Documents must be filed by 4pm 14 days after the document is referred to or used in a hearing (or earlier if the parties agree or ordered by the Court).  Unless otherwise ordered, once filed a Public Domain Document will be available to members of the public from the Court's file.

The Court will have the power to restrict or waive the requirement for Public Domain Documents to be filed, extend or otherwise amend the filing period, or make an order that a non-party may not obtain a copy of a document that would otherwise become a Public Domain Document. These orders will be known as Filing Modification Orders (or "FMOs").

The impact of the new pilot scheme

Whilst the pilot scheme could be viewed as a predominantly administrative change enabling greater public access to documents referred to at hearings, the new rules will inevitably impact various aspects of the litigation process:

• Case management: in light of the new rules, parties to litigation may wish to seek to agree a set of documents that become Public Domain Documents in advance of a hearing, including any that are "critical to the understanding" of a hearing, rather than taking up court time on this. Further, whilst it is intended that the procedure for FMOs be relatively informal under the new Practice Direction, it is yet to be seen how much time will be spent by the Courts in dealing with such applications and how the Courts will approach them.

• Administrative burden: the pilot scheme will put a greater administrative burden on parties in having to file Public Domain Documents within the relevant periods. For example, expert reports in complex claims often have voluminous annexes and appendices, all of which would need to be filed as Public Domain Documents. It is also not yet clear how the court will interpret the meaning of "documents critical to the understanding" of a hearing and hence it is not clear how onerous this will be.

• Publicity / public scrutiny: parties to litigation also need to be prepared for the potential for increased public scrutiny of documents filed in proceedings, as well as certain Public Domain Documents (such as witness statements) being used as tools to convey a party's position to the public. Parties and their legal advisors will need to give careful consideration to the reputation and commercial implications of certain documents in proceedings becoming more easily accessible by the public.

• Media access: the new rules will improve the media's access to documents referred to at hearings as, under the current rules, journalists have to rely on the parties providing them with public documents (such as skeleton arguments) or make an application to court to obtain them. However, as the filing periods do not require Public Domain Documents to be filed until several days after the hearing, it is likely that the media will still need to rely on the parties to provide documents so that reporting can be done promptly. Parties to high-profile litigation may wish to vary the filing period by agreement so that certain Public Domain Documents are filed on the same day as a hearing.

• Confidentiality: there are existing tools available to parties to litigation to protect confidentiality in documents relating to proceedings and parties will need to ensure they have strategies in place to protect confidentiality in light of the new rules in advance of any hearing. For example, the Court may order that any document "critical to the understanding" of a hearing becomes a Public Domain Document and, as noted, it is not yet clear how this will be interpreted. Parties ought therefore to approach proceedings on the basis that any document within a claim may become a Public Domain Document, unless there are very compelling reasons to the contrary for that document (such as in a confidential information claim).

• Settlement: The publicity risks associated with pursuing litigation under the pilot scheme may also encourage parties to alternative methods of dispute resolution (such as arbitration or mediation) or may encourage early settlement given the potential reputation and commercial implications of certain documents becoming public by default.