New year, new procedures! 

On 1 January 2026, a new two-year pilot-scheme comes into play in the High Court.  In legal talk, it’s known as “Practice Direction 51ZH – Access to Public Domain Documents” and it will initially operate in only a few (pilot) courts.

In summary, both parties and non-parties to a case will be able to more easily access certain documents classed as “Public Domain Documents” via the court’s (easy-to-use) electronic filing system, known as CE-File.

What are Public Domain Documents?

These include:

  1. Skeleton arguments;
  2. Written opening and closing submissions;
  3. Witness statements (but not including documents appended or annexed to the witness statement);
  4. Expert reports (also including annexes and appendices to expert reports); and
  5. Any other document critical to the understanding of the hearing ordered by the judge at the hearing to be a Public Domain Document.

A full list can be found here.

Further details

The onus will be on the parties to file their Public Domain Documents within a prescribed period of time referred to as the Filing Period.

The pilot scheme will only apply to such documents used in hearings conducted in public (whether in relation to new or existing proceedings in the pilot courts) and it won’t apply to hearings taking place in private.

If you’re a party who is not legally represented and you have not already filed a document in the proceedings using the CE-file system, then the scheme won’t apply to you.

Whilst this may sound like a drastic change, the court system’s principle of open justice means that access to some documents is already possible. Pursuant to CPR5.4C, a non-party may obtain statements of case (but not any documents filed with or attached to it) and public judgments or orders.  Additional documents are currently more onerous to obtain requiring permission of the court and a court application to be made.

One objective of the pilot scheme is to advance the principle of open justice in the civil courts and, if successful, we anticipate that the pilot will then be extended to further courts.

Why might our clients be interested in this?

It is the final category of documents listed above which may have the greatest impact as the judge will need to consider which documents are critical to the understanding of the hearing.  This leaves less certainty for parties in advance of a hearing as to what will be classified as critical by the judge.

Naturally, clients will want to protect their confidential information from getting into the wrong hands and this might be the first thing that springs to mind.  Below we explain how the court may make an order to deal with this.

Clients (especially high-profile clients) might be concerned about the publicity and reputational risks, particularly in cases where derogatory statements have been made about them, such as in a witness statement.  Witnesses may be more cautious about the evidence they give or they may be less willing to give evidence in the first place.

We may see a surge in parties engaging in arbitration or mediation, as the scheme further encourages parties to think about settlement prior to upcoming hearings, particularly if they are concerned with privacy and to avoid the need to file their Public Domain Documents.

Clients and their solicitors will need to budget time and resource for this additional procedural step.

But parties to litigation should not worry…

There will still be provision in place for the court to make an order (known as a “Filing Modification Order”) in relation to a document that has become or would be expected to become a Public Domain Document such that (for example):

  1. A non-party will not be able to obtain a copy on CE-File;
  2. The requirement to file is waived or restricted; or
  3. The document is to be redacted before filing.

We hope you have found the information in this article helpful.  If you are contemplating litigation or in the thick of it and looking for some fresh advice, please reach out to us if we can be of assistance.

 

The content of this article is intended to provide a general guide to the subject matter.

If you would like to discuss any of the matters raised in this article please contact Kira Lipinski.