Closing The Gap: Access To Court Documents In The UK And U.S.

Introduction

English Court documents¹ are soon to become more readily available to non-parties, with sweeping changes proposed under a pilot scheme published on October 20, 2025². The pilot will operate from January 1, 2026 until December 31, 2027, with the aim of advancing the principles of open justice and transparency.

These developments will bring the English courts closer to the approach taken in the United States, where materials in the court docket can be accessed with far greater ease.

In this OnPoint, we explore what the pilot scheme entails as well as the opportunities and challenges it presents, and how lessons from the U.S. model may help litigants in the English courts prepare for the pilot's entry into force.

Features of the pilot scheme

Currently, non-parties (including the press) can access and obtain copies of certain documents on the court file without the court's permission: the parties' statements of case (but not any documents filed with them), public orders and judgments. These are automatically accessible so long as proceedings have been served and an acknowledgement of service or a defence filed by the defendant. For any other documents, non-parties must make a formal application to the court for access.

Under the pilot scheme, a far broader scope of documents – "Public Domain Documents" – will become available on the court file: skeleton arguments, written submissions, witness statements/affidavits (but not their exhibits), expert reports (including their annexes and appendices), documents agreed by the parties to be Public Domain Documents and "any other document or documents critical to the understanding of the hearing ordered by the judge". The court's published guidance on the pilot scheme notes that this latter category is "designed to enable a judge to order that other particularly important documents qualify as Public Domain Documents and trigger the filing requirement. The circumstances in which this will happen are not defined, save to make clear that it relates to key documents only"³. What amounts to a key document will likely turn on the facts of each case, and time will tell how the courts interpret it.

The impetus for these changes - which have been described as "radical"⁴ – came from the UK Supreme Court, which confirmed that the default position under the principle of open justice is to grant access to documents placed before a judge and referred to by a party at trial unless there is a good reason not to do so⁵.

The pilot scheme will have retrospective effect such that it will apply to documents filed for or used in hearings taking place in public in both existing and new proceedings.

There are still some restrictions that may apply to the accessibility of documents or the information they contain. Parties (or non-parties under certain circumstances) will be able to apply to remove or redact genuinely confidential information through a File Modification Order ("FMO"). The pilot envisages that this will be a relatively informal process as part of a trial or interim hearing, where appropriate.

Adopting the pilot scheme brings the English courts closer to the well-established model of court openness in force in the United States, where the general right to inspect and copy public records and documents, including judicial records and documents, has been long recognized. This right of the public to access court documents emanates both from American common law and the First Amendment to the United States Constitution⁶.

Because of this, litigants in American courts prepare their litigation strategy with knowledge that many of the documents and facts involved will become part of the public record. At the outset of litigation, parties often agree mutually protective orders which shield confidential, commercially or personally sensitive information from disclosure⁷. Litigants facing government or other high-profile entities or individuals may draft their filings with an eye towards the court of public opinion in addition to the court presiding over their dispute.

Considerations for litigants

Whilst increased transparency is inherently attractive and conducive to increased public confidence in the overall judicial process, it brings with it certain opportunities and challenges for litigants. We set out our thoughts on these below, along with ways in which parties can mitigate any exposure.

• Publicity. Under the pilot scheme, more documents than ever will be accessible by non-parties, and earlier in the proceedings. Parties may face increased scrutiny of their disputes (including the facts and materials underlying them), which may mean giving greater consideration to litigation PR strategies. As in the U.S., parties may also want to be aware that the public will see their court filings and draft them with this in mind.
• Collateral use of documents. English court rules currently prohibit the collateral use of documents outside of proceedings save in limited exceptions (including where a document is read or referred to in a public hearing). However, the pilot scheme may allow parties to access documents for use in any other proceedings, including those abroad; parties should consider their global litigation strategy if this could be a risk or indeed an opportunity. Litigants will also need to bear in mind potential reputational and commercial risks should competitors access documents, although protections are available for confidential information (see below).
• Confidentiality planning. With an increased possibility of more sensitive and confidential information being publicly available, parties should consider from the outset how they will protect their confidential information. There are various potential options available, from FMOs to confidentiality rings (whereby a party can apply to restrict access to certain documents to a specified group of people, such as the parties' legal advisors). Parties should also consider their confidentiality needs against those of the opposing party, and how disparate confidentiality needs may impact broader disclosure discussions.
• Forum. Parties may wish to consider alternative means of dispute resolution that are considered to afford greater confidentiality, such as arbitration, although a recent English court decision has clarified that confidentiality in arbitrations is far from guaranteed and needs to be considered carefully (see our OnPoint on this issue here).
• Settlement strategy. The timing of settlement discussions is always an important consideration for parties. The fact that the other side's documents may become public earlier in the proceedings could be used as leverage when advancing settlement negotiations.

Conclusion

Increased transparency in the English courts is to be welcomed, but that brings with it opportunities as well as risks for litigants. Parties will need to consider upfront how to manage, or indeed leverage, the increased publicity and access to documents. The English courts remain alive to the necessity of protecting confidential information in appropriate circumstances, for which pre-existing and new court protections will be available.

Footnotes

1. For cases heard in public in the Commercial Court, the London Circuit Commercial Court and the Financial List.

2. Published on 20 October 2025: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/practice-direction-51zh-access-to-public-domain-documents.

3. Published on 20 October 2025: https://www.judiciary.uk/wp-content/uploads/2025/10/Guidance-Note-Access-to-Public-Domain-Documents-Pilot-CPR-Practice-Direction-51ZH-.pdf.

4. By Lord Justice Birss, Deputy head of Civil Justice and Chair of the Civil Procedure Rule Committee: https://assets.publishing.service.gov.uk/media/682499f4ab96d4ed0b262f11/cprc-4-april-2025-minutes.pdf_.

5. Cape Intermediate Holdings Ltd -v- Dring [2019] UKSC 38.

6. See e.g., Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 384–85 (1979) (discussing the common law origins of open courts); see also Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1067–71 (3d Cir. 1984) (discussing constitutional principles protecting the right to open courts).

7. The United States Supreme Court has recognized that documents and information gathered during pre-trial discovery may be subject to a protective order that allows the parties to keep it out of public view. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).

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.