- within Litigation, Mediation & Arbitration, Criminal Law and Energy and Natural Resources topic(s)
- in United States
New Practice Direction 51ZH makes it easier for third parties to obtain documents relating to litigation.
It is a fundamental principle of the English & Welsh system that justice should not only be done, but also be seen to be done. There has therefore been a mechanism in place for many years to allow third parties – such as journalists – automatically to obtain some types of documents relating to court proceedings.
A new pilot scheme running in certain courts from the start of next year will significantly broaden the types of documents that can be obtained in this way.
What is the current position?
Third parties can presently obtain some basic documents connected to litigation automatically, upon payment of a small fee. This includes copies of the parties' statements of case and copies of orders and judgments made in public.
To obtain other, more detailed, documents connected to litigation – for example witness statements or expert reports – the third party must make an application to court.
The application process provides something of a check on the ability of third parties to obtain these sorts of documents. An application takes time to prepare, may necessitate instructing a lawyer, and therefore has associated costs. The parties to the litigation will generally be given notice of it and be able to defend it. When considering the application, a judge will assess the third party's reasons for wanting a document against any competing interest in keeping it confidential. Judges will rarely grant access to documents before they have been deployed in open court.
What will change?
On 1 January 2026, a new pilot scheme will come into force, set out in new Practice Direction 51ZH and an accompanying guidance note. The scheme will initially run for two years in the Commercial Court, London Circuit Commercial Court and Financial List, with scope to expand it to other courts if it is deemed to be successful after six months. It will apply to both new and existing cases in those courts.
The scheme will significantly increase the types of documents automatically available to third parties, without needing to make an application. Documents that can be obtained in this way will now include:
- written submissions to the judge, including skeleton arguments, and written openings and closings;
- witness statements (although not documents appended to them);
- expert reports (including documents appended to them); and
- any other documents that a judge designates or the parties agree should be made accessible.
As with the current system, these documents will only be made available to third parties once they have been deployed in open court.
If a party does not want its documents to be made publicly available, or wants them to be redacted beforehand, it will need to apply to court in advance for an order to that effect.
What are the implications?
Third parties, such as journalists, have always been able to access certain documents connected to litigation, but it will now be quicker and easier for them to obtain a broader range of materials – including compelling documents like witness statements. This means that:
- parties will need to give early strategic consideration, near the outset of a case, to the documents that are likely to become publicly accessible;
- for some cases, the publicity generated is likely to increase, and we may see more scrutiny of individual factual and expert witnesses; and
- public hearings will be a gateway to substantial third-party access to documents, and perhaps represent even more of a trigger for settlement talks than they are already.
Our experience
Burness Paull has a distinct English law dispute resolution team and is a leading firm for complex and high-value English law disputes. The partners in our team hail from some of the world's leading law firms, including the majority of the Magic Circle firms, and have been involved in disputes in the English courts on behalf of clients from, or issues arising in, myriad jurisdictions within North and Central America, South America, Europe, Asia, the Middle East, and Africa. Our team is specifically known for expertise in: commercial and contractual disputes; M&A, partnership and shareholder disputes; banking and finance litigation; energy and oil & gas disputes; civil fraud and asset tracing; and real estate litigation.
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