- within Cannabis & Hemp, Law Practice Management and Privacy topic(s)
A pilot is being launched in the Commercial Court (including the London Circuit Commercial Court) and the Financial List (Commercial Court and Chancery Division) which will expand the number of documents accessible to non-parties. The driving motive behind this change is to advance the principle of open justice. The pilot will come into force on 1 January 2026 and last until 31 December 2027, with a review after six months. Any proceedings running during this period (whether new or existing) will be subject to the pilot.
Which documents are available to non-parties right now?
CPR 5.4C, which provides for the supply of documents to a non-party from court records, allows a non-party to access documents filed at court by parties without needing to seek permission. However, this is limited to public judgments or orders, and statements of case (but not any attachments or documents filed or served with them).
'[A]ny other document' filed by a party, or communications with the court, can also be accessed – albeit only with permission from the court. Pursuant to CPR5.4D, a non-party must file an application notice identifying the document sought and pay the relevant fee. The court will grant access if it believes it is in accordance with the principle of open justice to do so. The factors relevant in this decision include the significance of the document to the determination of issues, potential prejudice to the parties, and any public policy issues that may arise.
Why the change?
The catalyst for reform came from the decision in Cape Intermediate Holdings Ltd v Dring [2019] UKSC38. It was held by the Supreme Court that the court's jurisdiction over access to court documents is not confined only to the express terms of CPR 5.4C. Lady Hale stated that 'there can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents'. Rather, courts have an inherent jurisdiction to allow non-parties to obtain documents which may be necessary to enable public scrutiny of the court's decision-making, and which are critical to the understanding of the case and the principle of open justice.
In a postscript to the judgment, Lady Hale urged consideration, by bodies responsible for framing the court rules, of the questions of principle and practice raised in Cape.
This has resulted in CPR PD 51ZH, which supplements, rather than replaces, existing rules.
Which documents will be available to non-parties from 1 January 2026?
A wider range of documents will be available to the public for inspection, without an application having to be made. They will be accessible through the court filing system ("CE-File") after payment of a small fee (normally £11).
The pilot introduces provisions governing documents which enter the public domain. Unless the court orders otherwise, documents in the following categories which have been used or referred to at a hearing in public are "Public Domain Documents" from the start of the period within which they must be filed:
CPR PD 51ZH, para 8:
- skeleton arguments;
- written opening submissions;
- written closing submissions;
- other written submissions provided to a judge and relied upon in the hearing;
- witness statements and affidavits –
- including those relied upon as evidence in chief at trial and those relied upon at a public hearing of an application;
- not including documents appended or annexed to the witness statement or affidavit;
- expert reports, including –
- those adduced as evidence in chief at trial and those relied upon at a public hearing of an application;
- (ii) annexes and appendices to expert reports;
- any other document or documents critical to the understanding of the hearing ordered by the judge at the hearing to be a Public Domain Document;
- any documents agreed by the parties to be Public Domain Documents.
Paragraph 8(g) has the effect of widening the scope of what could be categorised as a Public Domain Document and could potentially cause some uncertainty and scope for argument. For example, a contract which forms the centrepiece of a dispute and has been referenced extensively throughout a hearing, can be classed as a Public Domain Document. This provision is intended to apply only where it is artificial to regard a document as not being public.
Restriction of access
It must be noted that the pilot only applies to documents which enter the public domain via a public hearing, and not those which are conducted in private. Further, reference made in a Public Domain Document to another document will not automatically make the other document a Public Domain Document.
A feature of the pilot which will inevitably be of interest to parties is the ability to ask for a filing modification order ("FMO"), which gives the court discretion to alter access to a Public Domain Document. This process is designed to deal with concerns about making documents publicly available, for example, where documents contain confidential material. A court can refuse access to a non-party, allow a document to be edited or redacted before being made publicly available, extend or amend the filing period, or waive or restrict the filing requirement. It is envisaged that circumstances where it would not be appropriate to make the documents publicly available will be rare.
Key considerations to keep in mind
- The disclosure obligation is proactive. The onus will fall on parties themselves to make sure that all relevant documents have been filed on the public-facing platform of the CE-File.
- As a non-party, there should no longer be any time delay in accessing documents, or any need to make an application to obtain them.
- A request for an FMO is unlikely to be successful if it is based only on a mere desire for privacy.
- Extra consideration may need to be taken in drafting documents, as their public accessibility significantly increases the possibility of reputational impact and the formation of public opinions.
- Although alternative dispute resolution should be considered throughout the process of litigation, timing is now more key than ever before. Negotiations prior to trial are crucial in protecting the privacy of parties, before they become under an obligation to file documents publicly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
