Practice Direction 51ZH and How it Transforms Legal Disclosure

In a move designed to address the concerns raised by Lady Hale in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 about public access to Court documents, new Practice Direction 51ZH entered into force on 1 January 2026 (the “Pilot”).

The Pilot, which will run until 31 December 2027 in the Commercial Court, London Circuit Commercial Court of the King’s Bench Division and the Financial List (Commercial Court and Chancery Division), will give the public greater access to documents filed in legal proceedings and is intended to further the constitutional principle of open justice.

Headline points of pilot

Public Domain Documents

The pilot creates a category of documents called ‘Public Domain Documents’ which are documents that enter the public domain via a hearing heard in public. The pilot does not apply to hearings conducted in private. The Practice Direction adopts a broad definition of Public Domain Documents and examples of documents, that fall within the Pilot’s scope and accordingly can be accessed by non-parties, include written submissions, witness statements and affidavits and expert reports. The Pilot will serve as a test run for accessing documents that enter the public domain via their use in legal proceedings.

Change to default position

The Pilot removes the requirement for non-parties to make an application for access to documents and, instead, parties will be required to file documents that fall within the category of ‘Public Domain Documents’ on CE File’s public access section, thereby facilitating disclosure to non-parties. As the default position has shifted from a non-party having to make an application to access documents to one encouraging public disclosure, parties wishing to restrict public access to Public Domain Documents will have to apply for a Filing Modification Order (“FMO”).

FMOs

To allay fears about releasing confidential and/or sensitive information to the public, parties will be able to withdraw from filing or redact sensitive information from documents through the mechanism of an FMO application. The Judge hearing the trial or application will then balance the competing interests of the party making the application versus the benefits of allowing public access. At this stage, there appears to be little guidance as to what reasons will be sufficient to grant an FMO.

Potential implications of the Pilot

One of the most significant changes arising from the introduction of the Pilot is the departure from the prevailing position that non-parties had to make applications to access documents available with the Court. With such applications now dispensed with from 1 January 2026, parties will naturally have greater concern about issues of privacy and confidentiality when filing documents with the Court.

Practically, parties will need to take extra care when presenting information which they may deem to be commercially (or otherwise) sensitive when filing documents with the court. To mitigate risk, parties can make an FMO application but, given the overarching principle of transparency and open justice underpinning the Pilot, the court is likely to require compelling reasons to grant an FMO. It will certainly be interesting to analyse the court’s approach to FMOs once the Pilot has had time to take effect, as well as the number of FMOs applied for as this may determine the long-term prospects of the scheme. Depending on the success of the Pilot over the two-year period, it may be rolled out in other civil courts. We will further comment on this as the Pilot becomes fully operational and parties grapple with its requirements.

The Pilot will certainly result in court documents gaining a wider audience. A potential consequence of this move towards transparency and open justice, and a further possible means of mitigating commercially sensitive information being made public, could be parties electing to resolve disputes through alternative dispute resolution mechanisms that guarantee confidentiality such as arbitration and mediation.

Our expertise in litigation and our track record of regularly engaging in alternative dispute resolution procedures including arbitration and mediation makes us perfectly positioned to address any concerns or queries you may have relating to the Pilot and any new or existing proceedings in the Commercial Court.

Please contact Claire Revell or your usual Beale & Co contact if you require assistance or have any questions relating to the Pilot scheme.