What is the 51ZH Access to Public Domain Document Pilot?
The Public Domain Document Pilot will take place between 1 January 2026 and 31 December 2027 and change the way in which certain court documents in the Commercial Court, London Circuit Commercial Court and Financial List are made available to the public.
The pilot - introduced by Practice Direction 51ZH: Access to Public Domain Documents - represents a major shift towards structured transparency in commercial litigation in England and Wales.
Under the pilot, certain materials referred to or used in hearings held in open court must be filed in a manner which makes them available on the public side of the courts’ electronic filing system (CE-File).
Which documents will be accessible under the Public Domain Document pilot?
A category of “Public Domain Documents” that must be filed electronically for access by non-parties has been established. The documents include written opening and closing submissions, witness statements and affidavits (excluding exhibits), skeleton arguments and expert reports. Furthermore, the pilot allows judges to require documents not specifically included in the category be filed where they are “critical to the understanding of the hearing” in context.
Why does the Public Domain Document pilot matter for commercial litigation?
Under the existing common law principle of open justice, documents become public once placed before a judge and referred to in open proceedings. Prior to the pilot, third party and general public access to most of these materials required an application be made to the court in order to obtain copies.
The pilot transitions this system to one in which public availability is the default requiring materials be filed once the use in hearing threshold is met unless a court otherwise orders. The judiciary has published a guidance note to explain how the obligations will operate in practice.
These changes reflect an effort by the judiciary and the Civil Procedure Rules Committee to align procedural practice with the open justice principle explained in Cape Intermediate Holdings Ltd v Dring.
How the Public Domain Documents Pilot affects commercial litigation strategy
For decades, commercial litigation strategy has been informed by the tacit understanding that certain documents would remain behind the scenes unless a compelling reason for public access was established. Now, sensitive commercial terms, detailed expert analysis and proprietary technical evidence could become publicly accessible.
Filing Modification Orders (FMOs) provide a procedural mechanism for parties to seek redaction or restriction of sensitive information before documents enter the public domain. FMOs, available at the court’s discretion, can be sought by parties or non-parties named or referred to in a Public Domain Document. Importantly, parties must file an application for an FMO before the relevant filing period begins.
Parties must now anticipate public visibility and consider confidentiality implications at earlier stages of proceedings than was previously necessary.
How the Public Domain Documents pilot affects alternative dispute resolution
Alternative dispute resolution is likely to become increasingly attractive for commercial actors seeking to manage confidentiality and reputational risk. English arbitration inherently operates on terms that are contractual and confidential, with document disclosure governed by the parties’ agreement rather than a statutory or common-law open justice regime. Mediation offers a similarly private forum for dispute resolution where communications, proposals and evidential material typically remain confidential to the participants. This is discussed in our article on the value of mediation.
As English courts move to transparency as default, it does not diminish the legal robustness of litigation as a method of dispute resolution. But parties for whom confidentiality is a priority might decide to place greater weight on arbitration or intensive settlement negotiations before matters reach a stage where documents are likely to enter the public domain.
How increased transparency will change commercial litigation in 2026
Practice Direction 51ZH will change preparation for hearings in 2026. Preparation is likely to increasingly involve assessment of publication risk, early identification of documents that might be susceptible to public access and proactive consideration of necessary confidentiality safeguards. These considerations are likely to shape both commercial litigation conduct and settlement timing throughout the pilot period.
Please contact the Commercial Litigation team at Barnes Law for advice on litigation strategy in 2026.
Authored by Barnes Law Managing Partner, Yulia Barnes.
