Commercial Court clarifies test for restricting document access under transparency pilot

The ruling is believed to be the first reported decision under the new so-called 'transparency pilot' in CPR Practice Direction 51ZH, on what factors the courts will take into consideration when deciding whether to make an FMO.

The pilot scheme, which came into force in January and operates in the Commercial Court, Financial List and London Circuit Commercial Court, is designed to make it easier for the public to access certain documents in commercial litigation in England and Wales.

CPR PD 51ZH provides an obligation to file any “public domain document” - which includes skeleton arguments, witness statements and expert reports used at a public hearing - within a specified period after a public hearing has taken place. Any third party may obtain copies of that document from the publicly accessible part of the court’s electronic filing system. However, the court can also waive or qualify the filing requirement by making an FMO. 

A pilot practice direction and accompanying guidance not (6 pages / 222KB) were published in October 2025, which provided details about the FMO process available where parties wish to withhold a document from public filing or to redact it, for example, on grounds of confidentiality.

However, in Various Claimants v Entain plc , the court recognised that the pilot rules were drafted in broad terms and did not identify what factors the courts should take into account when considering whether and how to exercise their discretion to restrict public access to court documents under the new scheme.

In this case, the question of whether the court should make an FMO arose in circumstances where it was agreed by the parties represented in court that there was a significant overlap between issues which arose in these civil proceedings and issues in related criminal proceedings. The claimants and defendants in the civil proceedings were not themselves party to the criminal proceedings, and the application for an FMO was made by the Crown Prosecution Service, which wished to ensure that the fairness of the criminal trials was not jeopardised by steps taken in the civil proceedings.

In considering this point, the court drew on the Supreme Court’s 2019 decision in Dring v Cape Intermediate Holdings Ltd, which established that non-parties would generally be granted a right to inspect a document once it had been placed before the court and referred to at a public hearing, if access would advance the principle of open justice.  This would, the Supreme Court held in the Dring case, be subject to a balancing of countervailing principles such as national security and commercial confidentiality.

In the recent case, the court explained that the underlying principles established in Dring must now be “adapted to reflect the procedures introduced by” the pilot scheme, under which the starting point is that the grant of access to a wider range of documents without the need for a court order is treated by the CPR as an appropriate way of advancing the open justice principle in the courts where the pilot applies. This is, however, subject to the court’s power to make an FMO.

In exercising that discretion, the court identified its task as being to “balance on the one hand the value of the information in question in advancing the open justice principle against, amongst other things, the risk of harm which uncontrolled disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”. Those legitimate interests included “the interests of those engaged in the contemporaneous conduct of criminal proceedings dealing with the same events and circumstances.”

The court reasoned that the increased risk of information prejudicial to the fair conduct of criminal proceedings leaking into the public domain, if it were accessible under the pilot, should lead to a FMO being made. If the information were made available, the judge said this “would give rise to a material risk that information prejudicial to the integrity of the criminal proceedings might end up in the public domain and become available to jurors in due course.”

Consideration was given to whether the documents could simply be redacted rather than being withheld from the public court file altogether, but the court identified difficulties with this including that the parties to the civil proceedings were not parties to the criminal proceedings, and were therefore “not well equipped to form an accurate view of what redactions may be necessary”.

The judge therefore made an FMO waiving the requirement for the documents to be filed, but with a placeholder to be included on the court file drawing attention to non-parties’ rights to make an application for access.

The decision marks the first known time the courts’ approach to FMO applications under the new regime has been outlined, said Kate Aldwinckle of Pinsent Masons. “The key takeaway is the confirmation that the court will continue to be guided by the principles of open justice, as detailed in the Supreme Court's decision in Dring, upon which the pilot draws,” she said. “This means that the court will balance the significant importance of transparency against the risk of harm through public accessibility.”

Aldwinckle said the judgment also provided some helpful guidance on the threshold for making FMOs. “There is now precedent that this threshold is likely to be met where making information available to non-parties under the pilot would materially increase the risk of information which would be prejudicial to the integrity of criminal proceedings ending up in the public domain,” she said. “This is likely not a surprise for many, but does emphasise that access to court documents – and potential restrictions on such access – is something to be considered from an early stage wherever parallel proceedings are involved.”

Emilie Jones, a commercial litigation expert with Pinsent Masons, said the extent to which FMOs may be available for arguably lesser potential harms, such as some concerns relating to commercial sensitivity, remains to be seen as cases under the pilot work their way through the courts. “Clarity on these issues will be important because there are concerns in some quarters that non-party access to court documents is too expansive and may deter some businesses from resolving their disputes in the English courts,” she said.

The transparency pilot is expected to operate for an initial two-year period and was anticipated to be subject to review after six months. If successful, there are plans to roll the scheme out across other business and property courts across England and Wales.

Jones said: “It will be interesting to see when the planned review of the pilot takes place and whether concerns about an over-expansive approach to document access form part of that review, alongside the ironing out of inevitable smaller operational or drafting issues which have arisen in these early months of the new regime.”