From 1 January 2026, England and Wales will see a significant transformation in public access to court documents, following the introduction of Practice Direction 51ZH (“PD 51ZH”) as part of a two-year pilot scheme. This initiative promotes open justice by making important court documents accessible to everyone.
As the rollout of the new regime fast approaches, we examine the main aspects of this change and highlight crucial factors to consider when dealing with litigation following the introduction of PD 51ZH.
Scope and Application
The pilot begins with the Commercial Court, London Circuit Commercial Court and Financial List (all part of the Business and Property Courts (BPC), with possible expansion to other parts of the BPC if the pilot is a success. It applies to documents from public hearings starting 1 January 2026 but excludes private or ex parte hearings.
What Documents Will Be Public?
Under PD 51ZH, the following documents will be designated as “Public Domain Documents” and made available by default on the public-facing side of the electronic court file (CE-File):
- Skeleton arguments
- Written opening and closing submissions
- Witness statements and affidavits (excluding exhibits)
- Expert reports (including exhibits)
- Any other document deemed “critical to understanding the case” by the judge
- Documents that both parties agree should be public
Previously, access to such documents required a formal application and judicial approval. The new rules remove this barrier, allowing third parties to obtain these documents for a nominal fee, unless a Filing Modification Order (FMO) is granted to restrict access for confidentiality or other compelling reasons.
Confidentiality and Redaction
Transparency is the default, but parties may apply for FMOs to redact or withhold sensitive or confidential information. The guidance indicates that FMOs will be granted only in rare circumstances, so parties must proactively identify and justify requests for confidentiality early in proceedings.
Impact
This move towards greater transparency is expected to enhance public understanding of court proceedings, but it also raises questions about confidentiality, litigation strategy, and the potential for increased public scrutiny.
Practicalities for litigants
With the introduction of PD 51ZH, those considering litigation in England and Wales must prepare for a new level of transparency. This requires proactive steps to manage risk and strategy:
- Assess confidentiality risks early: review whether any documents classified as “Public Domain Documents” are likely to contain commercially sensitive or reputationally delicate material.
- Plan ahead for any FMO application: if sensitive information is identified, prepare evidence to support an application for FMO in good time.
- Consider litigation strategy: recognise that arguments, witness credibility and expert opinions may be scrutinised not only by the opposing side but by competitors, journalists, and the wider public. Litigation strategy should factor in reputational management and potential media interest.
- Witnesses: as witness statements will be made public, consider who your witnesses are and whether the knowledge that their statement will be made public will impact what they may say in their evidence.
For clients who wish for proceedings to remain private, arbitration could offer a practical alternative to litigation. Arbitration is a private and binding method of resolving disputes founded on the parties’ agreement to submit their dispute to an arbitrator. This could offer the following benefits:
- Proceedings remaining private, with no automatic public access to submissions or evidence;
- Confidentiality can be contractually reinforced, protecting sensitive commercial information; and
- Parties retain procedural flexibility, avoiding the burden of FMOs and reputational exposure.
Conclusion
The introduction of PD 51ZH represents a significant step towards greater transparency in the courts of England and Wales. By making key documents publicly accessible, the new regime promotes open justice but also requires litigation and legal teams to be more vigilant about confidentiality and reputational risks. Early assessment of sensitive material and strategic planning are now essential. For those who prioritise privacy, arbitration continues to offer a confidential alternative to litigation.
Ultimately, adapting to these changes will be crucial for effective risk management and successful dispute resolution.
If you would like more information please contact our Corporate Dispute team or your usual Brodies contact.
