The Open Justice Pilot Scheme

How is the Open Justice Pilot Scheme improving access to documents in civil proceedings?

From 1 January 2026, a new open justice pilot scheme under Practice Direction 51ZH will come into force, that will allow the public to access key documents filed in the various Commercial Courts via the Court’s electronic filing system (CE-File). The pilot scheme applies to the Commercial Court, London Circuit Commercial Court and The Financial List and it will run for two years.

This marks a significant shift in how litigation documents are disclosed and accessed by the public, with implications for confidentiality and litigation strategy. For corporate clients, the change raises questions about transparency, risk and tactical approach in high-value disputes.

What is the purpose of the Open Justice Pilot Scheme?

The pilot scheme reflects the judiciary’s commitment to open justice, building on principles articulated in cases such as Dring v Cape Intermediate Holdings Ltd [2019]. The pilot scheme aims to make documents “critical to understanding” a case available to the public once a hearing begins. Under the Practice Direction, these are referred to as “Public Domain Documents”.

In practice, this means that non-parties (including most notably – journalists, competitors and investors) will have much easier access to materials that were previously difficult to obtain. For businesses, that means sensitive commercial information could enter the public domain quickly.

The pilot scheme introduces a proactive obligation: once a document becomes a Public Domain Document, it must be filed at Court (irrespective of whether it has been filed already) on the public side of CE-File within strict timeframes. This reverses the traditional position where non-parties had to apply for access under CPR 5.4C.

Could your documents soon be public?

Under the Practice Direction, it states that the following categories are classed as Public Domain Documents and will be publicly available:

• Skeleton arguments
• Written opening and closing submissions
• Witness statements (excluding exhibits)
• Expert reports (including annexes)
• Other documents deemed “critical to understanding” the hearing
• Statements of case and judgments (under CPR 5.4C)

For skeleton arguments, they must be filed within two clear days of the hearing. For all other documents, within 14 days after the document is referred to or used in a hearing. Unless the Court directs otherwise, once filed the document will be automatically available to the public for viewing.

We are sure a waterfall of case law will stem from the interpretation of documents that are “critical to understanding” the hearing but the intention is clear: there should be transparency and it should not be delayed.

It is worthwhile to note that the new rules do not affect the longstanding principle under common law that if a document is referred to in open court, then it enters the public domain and copies can be requested.

What are the key risks for high value disputes and corporate clients?

The dangers of commercially sensitive documents being accessible to the public cannot be overstated.

Consider the following harm scenarios:

• Competitive disadvantage: Rivals gain insight into pricing models, margin data, or technical processes
• Investor confidence: Allegations aired in skeleton arguments may affect share price before judgment
• Customer relationships: Disclosure of contractual terms could undermine negotiations or trigger disputes

These risks are amplified by the speed of access. Under the pilot scheme, documents will be available shortly after the hearing.

What are your Redaction Rights? – filing Modification Order applications

Parties may apply for a Filing Modification Order (FMO) to redact or restrict access to sensitive information. However, the scope will be narrow. Redaction cannot be used to withhold relevant material; only genuinely irrelevant content may be removed. The Practice Direction emphasises that FMOs must be justified under the principles of open justice.

Examples of permissible redactions include:

• Commercial terms not in dispute (e.g. pricing in unrelated contracts)
• Technical specifications not relied upon in the proceedings
• Personal data irrelevant to the case outcome

The pilot scheme operates alongside Part 5 of the CPR (which contains provisions about documents used in court proceedings, including rights of access) and Part 31 of the CPR (which sets out the rules around the disclosure and inspection of documents), so disclosure obligations should remain intact.

This interplay means that while parties can protect some information, the threshold for doing so is high.

Strategic disclosure: is it going to be a new tactical landscape?

All corporate entities who face litigation along with their solicitors must consider this Practice Direction from the very beginning as it is certainly going to influence how documents are drafted and presented to Courts.

Legal teams will need to consider public scrutiny when preparing materials for hearings. Tone, structure and content will matter not just for the judge, but for the wider audience who may access these documents.

We expect to see:

• Narrower drafting: Avoiding unnecessary commercial detail in skeletons and statements
• Deliberate structuring: Placing sensitive technical data in exhibits to witness statements (excluded from public filing) rather than in expert annexes (included)
• Early FMO planning: Applications should be prepared before hearings, supported by clear evidence of potential harm

Will this change litigation behaviour?

It will be interesting to see if clients may prefer early settlement to avoid public exposure. For listed companies or regulated entities, reputational risk may outweigh the benefits of litigating in open court, but this is not a new risk to such entities albeit a notable expansion that ought to be considered.

Issues that will need to be considered as part of the overall litigation strategy include:

• The risk of commercially sensitive information becoming publicly available
• The potential reputational impact of public hearings
• The strict limits on redaction and the need to preserve relevant content
• The strategic benefits of alternative dispute resolution or FMO applications

What do corporate clients need to do to prepare?

Corporate clients should adopt a proactive approach:

• Pre-hearing audits: Identify sensitive content early and decide where it sits – in a witness statement, exhibit or expert report
• Targeted FMOs: Prepare evidence and clear arguments for redaction of irrelevant but harmful material
• Drafting discipline: Keep submissions focused on issues in dispute; avoid including full contracts unless essential

Transparency vs. confidentiality

The pilot scheme is a bold step towards open justice, but for corporate clients, it introduces real challenges.

The principle of transparency is laudable, yet the practical effect may be to increase the risk of inadvertent disclosure sensitive information and potentially increase the costs of litigating in the Commercial Courts as a result of the need for additional applications to preserve confidentiality.

In our view, the pilot will accelerate two trends:

• Increased satellite litigation due to FMO applications or breach of Pilot scheme
• Greater emphasis on settlement. Businesses may opt to resolve matters early to avoid the reputational and competitive risks of public filings

When considering litigation, clients must not only take into consideration the legal merits of the case, but also the broader commercial implications of litigating.

Final thoughts from our Dispute Resolution team

The pilot scheme represents a significant cultural shift in commercial litigation.

For corporate clients, the message is clear: if your case reaches a public hearing in the Commercial Courts, assume that much of your narrative will be accessible to competitors, media and the market – very fast.

The opportunity lies in telling a compelling, accurate story; the risk is collateral disclosure of commercially sensitive information.

Early planning, disciplined drafting and targeted FMOs can mitigate that risk. Businesses should act now to prepare for 1st January 2026, especially if you already have a hearing date expected in 2026 or 2027.

How Morr & Co can help?

If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Dispute Resolution team on 0333 038 9100 or email info@morrlaw.com and a member of our expert team will get back to you.

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.