The new Access to Public Domain Documents Pilot, which began on 1 January 2026, facilitates public access to a wide range of documents used in litigation. It is operating for a two-year period in the Commercial Court and the London Circuit Commercial Court of the Kings Bench Division and the Financial List. All documents within scope of the pilot must now be filed in the new publicly accessible part of the existing CE File system.

The categories of documents covered by the pilot are:

  • skeleton arguments;
  • written submissions;
  • witness statements and affidavits (but excluding exhibits);
  • experts’ reports (including their annexes and appendices); and
  • any other documents critical to the understanding of a hearing.

These will all become Public Domain Documents (PDDs) once they have been used or referred to in a public hearing.

Is this a change in the law, or just a change in practice?

The genesis of this pilot dates back several years. In 2019, the Supreme Court ruled that members of the public may access documents placed before the court and which were referred to at a public hearing (Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38).

In her judgment, Lady Hale described the two principal purposes of the open justice principle (at paragraphs 42 and 43): ‘The first is to enable public scrutiny of the way in which courts decide cases … But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken.’

As court practice has evolved to place greater reliance upon written submissions and background documents, it has become increasingly difficult for observers and journalists to follow hearings and understand the reasoning behind judgments. The pilot seeks to redress this by facilitating automatic access to documents which, at least in theory, third parties have long been able to obtain but only by making an application pursuant to rule 5.4C(1) of the Civil Procedure Rules. In practice, the pilot goes even further and allows access to a broader range of documents than those that were typically available before.

How will the pilot change litigation?

  • Concerns about private and confidential information getting into the public domain may influence litigation strategy, and even decisions about whether or not to litigate in the Commercial Court and the London Circuit Commercial Court at all. Where possible, parties may choose mediation or arbitration. We may see earlier settlements, particularly prior to hearings at which key documents would become PDDs, and parties will also be further incentivised to settle before trial.
  • There is a risk of spurious litigation being threatened or even issued as a negotiating tool where a party knows that others will settle to avoid disclosure of certain information or documents.
  • Those who do litigate will need to plan even earlier how they will deal with issues that could garner public attention. We may see more involvement from public relations specialists. Messaging will need to be agreed before key documents become PDDs. Parties will also need to be prepared for the collateral use of PDDs in other litigation and outside litigation.
  • We expect to see parties making representations to judges about which documents should be considered PDDs, possibly at pre-trial reviews and other interim hearings.
  • Parties may try to avoid contested disclosure hearings that could result in a disclosure document that is the subject of the hearing becoming a PDD.
  • Some witness statements may be drafted with a view to explaining background facts to third parties who may not read all the documents in the case and might otherwise draw a negative or incorrect conclusion. Solicitors drafting witness statements will need to be very careful to comply with the rules on drafting where they attempt this.
  • In exceptional circumstances, parties can seek a Filing Modification Order (FMO) to prevent public filing of a document (or part of a document). These will be rare and will require a strong justification. They will also need to be sought before the document is used in a public hearing. Parties will need to be prepared for non-parties who are named in documents to apply for FMOs.
  • The pilot will create more work for solicitors, who must file documents twice, and who will need to pay careful attention to the new filing deadlines, which may also result in additional costs. Sanctions will apply for non-compliance.

What does this mean for parties currently litigating (or about to issue) in the Commercial Court?

Lawyers should be talking to their clients about these issues now. Where litigation is contemplated or underway, solicitors and their clients must identify which documents will become PDDs (and which may become PDDs) and then consider the reputational and commercial implications of those documents entering the public domain.

Those involved in arbitrations should also consider which documents might become PDDs if the arbitral award was to be appealed in the Commercial Court.

Future gazing

The pilot will be reviewed at the six-month mark.

Ultimately, if the pilot is considered a success, it seems likely that it will be extended to other courts. If that happens, it could have a significant impact upon litigants (and particularly defendants to litigation, who have not chosen to issue a claim), who may find that a huge amount of their personal and private information is made public.

This may be only the start of a shift towards a more transparent courts system, perhaps more akin to the US federal court system. Of course, justice must not only be done but must also be seen to be done, and in a justice system reliant upon precedent, it is important that lawyers, clients and the public are able to understand why and how decisions are being made.

Yet, a note of caution - if the price of justice is the releasing into the public domain of extensive personal and commercially sensitive data (not to mention expensive legal work product), might that be too high a cost for some?