A new transparency regime for Commercial Court documents (Practice Direction 51ZH) has come into force.
It is a two-year pilot running from 1 January 2026 to 31 December 2027, applying to the Commercial Court, London Circuit Commercial Court, and the Financial List in both the King's Bench and Chancery Divisions. The new pilot represents a fundamental shift in how transparency is approached in commercial litigation. It reflects concerns expressed by Lady Hale in the Supreme Court case of Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 about public access to documents already in the public domain as a matter of law that were difficult to obtain in practice, and it changes the default position from requiring an application by the person seeking documents to the automatic provision of identified documents. A six-month review is anticipated, and if the pilot is successful, an extension to other Business and Property Courts is expected.
Essentially, documents referred to in a hearing must be filed online so that anyone can access them. These include skeleton arguments, written opening and closing submissions, witness statements and affidavits (but not their exhibits or annexes), expert reports including their annexes and appendices, and any other document "critical to the understanding of the hearing" that a judge orders to be a "Public Domain Document". The deadline for filing these documents is strict and enforcement is robust: if a party fails to file a Public Domain Document without first seeking protection, the Court may order them to do so, with non-compliance potentially giving rise to contempt of court.
Parties who wish to protect sensitive or confidential material from public disclosure may apply for a Filing Modification Order ("FMO"). The Court may grant an FMO to prevent a non-party from obtaining a copy of a document, to waive or restrict the filing requirement, to require filing only after the document has been edited or redacted in accordance with Court directions, to extend or amend the filing period, or to make such other order as it thinks fit. However, the Court will require a good reason to grant an FMO, and a party's view that a document is confidential may not on its own be sufficient. Valid grounds for denying access may include national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. So, a high threshold and at this stage we do not know the extent to which the Court will be willing to make such orders. As a result, parties to litigation, including insolvency office holders, need to be aware of the high chance that their documents will be made public.
