Commercial Court Pilot Will Mean Many More Court Documents Publicly Available By Default From 1 January 2026

The documents that can be obtained for a small fee will include skeleton arguments, witness statements and expert reports relied on at a public hearing.

A new pilot scheme for public access to court documents will run in the Commercial Court and Financial List from 1 January. The pilot will be governed by Practice Direction (PD) 51ZH - Access to Public Domain Documents, and a Guidance Note has also been published to explain how the pilot is intended to operate. The pilot will run for two years, with a planned review after six months. If successful, it will be extended to further courts, most likely starting with other Business and Property Courts jurisdictions (which include the Chancery Division and the Technology and Construction Court).

The pilot will apply in both new and existing proceedings where there is a public hearing taking place in the Commercial Court (including the Circuit Commercial Court) or Financial List during the pilot period. It will therefore apply to documents that have already been filed or served, or are filed or served before 1 January, if they are to be used at a public hearing taking place after that date – which will include both trials and public hearings of interim applications.

The following documents will be covered by the pilot, where they have been used or referred to at a public hearing:

• skeleton arguments;
• written submissions, including opening and closing submissions;
• witness statements and affidavits (but not exhibits or appendices);
• expert reports (including annexes and appendices);
• any other documents critical to the understanding of the hearing as ordered by the judge at the hearing; and
• any other documents agreed by the parties.

Parties will be required to re-file these documents in the public-facing section of the court's electronic filing system (CE-file) within a certain period so that they are available to non-parties in the same way as statements of case and orders made in public are currently available (ie for a small fee, typically £11). For skeleton arguments, this period will be two days from the start of the hearing and for everything else it will be 14 days from when they are used at the hearing (eg when a witness is called to give evidence). If a party does not comply with the requirement to re-file a document, the court may order them to do so.

Existing orders imposing confidentiality or anonymity regimes will not be affected, and it will be possible to seek a "Filing Modification Order" to exclude documents or sections of documents from the public CE-file where there are particular confidentiality concerns.

The documents covered by the pilot scheme are a sub-set of the documents that, at common law, are already considered to be in the public domain under the principles established by the Supreme Court's decision in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 (see our blog post on that decision here) as they have been placed before the court and referred to at a hearing. Currently, however, the onus is on non-parties to apply to the court to seek access to such documents. The new pilot scheme will shift the starting point, so that the most important documents (including skeleton arguments, witness statements and expert reports) can be accessed for a small fee, and the onus will be on those seeking to persuade the court that access should not be given.

The change to be introduced is therefore significant, albeit less radical than the proposals put forward by the Civil Procedure Rule Committee last March which appeared to allow public access to documents before they were ever used in court and where there might never be a hearing (as outlined in our blog post at the time: Proposed new rule would radically expand public access to court documents).

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