New public access to court documents pilot to start in January 2026

The pilot was expected to start in October in specific parts of the English High Court – the Commercial Court, London Circuit Commercial Court and the Financial List – but on 20 October the judiciary confirmed in a press release that the scheme will now begin on 1 January 2026.

The scheme, which will operate for an initial two-year period, is designed to boost open justice by widening public access to certain documents in commercial litigation in England and Wales. There will be a review after six months and, if successful, it’s expected that the pilot will be rolled out across other business and property courts across England and Wales.

The pilot will go live in January 2026 – later than the original proposed start date of October 2025 – which Emilie Jones, a litigation expert at Pinsent Masons, said would “gives parties and their legal advisers more time to digest the detail and prepare.”

The now-published pilot practice direction and accompanying guidance note (6 pages / 222KB) confirm that, under the new scheme, the following documents will, if used or referred to at a public hearing, be regarded as “public domain documents” and therefore be subject to the pilot rules: skeleton arguments; written opening and closing submissions and any other written submissions provided to a judge and relied upon in a hearing; witness statements and affidavits – whether they are relied upon as evidence in chief at trial or at a public hearing of an application; and expert reports, again whether they are relied upon at trial or a publicly-heard application.

Any other document used or referred to at a public hearing, and which the judge deems critical to the understanding of the hearing and so makes the subject of an order under the pilot, will also be classed as a public domain document, as will any other documents that both parties agree should be regarded as such.

The scheme only applies to public hearings, not those held in private. It will apply only to documents used in hearings which take place from 1 January 2026 onwards, meaning hearings that have already taken place will be exempt. However, it will apply to documents that have already been prepared or filed in advance of hearings taking place from 1 January.

Kate Aldwinckle of Pinsent Masons said the guidance note also helpfully clarifies that underlying documents which do not fall within the above categories of “public domain documents”, such as most contemporaneous documents, will not generally need to be filed, subject to a specific court order where those documents are critical to an understanding of the hearing, or to party agreement.  

Moreover, with respect to witness statements and affidavits, she said exhibits are not included in the documents that need to be made available. “This contrasts with expert reports, where annexes and exhibits are included,” she said. “The rationale for this distinction is confirmed in the guidance note as being that the annexes and exhibits to expert reports frequently contain the main results of an expert’s evidence or material required to comprehend the report, whereas witness statements can annex many documents which a judge would not be expected to read and which would not be referred to at a hearing.”

The new practice direction and guidance note also provide more details about the “filing modification order” (FMO) process available where parties wish to withhold a document from filing or to redact it, most likely on grounds of confidentiality. Parties should try to seek a FMO before the relevant “filing period” – essentially before a document is used, referred to or relied upon at a public hearing. In such circumstances, seeking a FMO requires a written request and proposed order to be filed at the court, with due notice given to the other parties and giving reasons and, where necessary, evidence. Once a document has entered the public domain and the filing period has begun, a formal Part 23 application for a FMO is required.

“While seeking an FMO is described in the guidance note as a relatively informal process,” said Aldwinckle, “the effect of the pilot is that parties will nonetheless need to give such orders careful early consideration.”

Jones said the published detail of the pilot and the accompanying guidance should provide some measure of reassurance to businesses concerned about the prospect of having to make large amounts of potentially sensitive information readily available to the public under the new scheme. However, she said that the pilot still “certainly represents a shift towards it being more straightforward for media and members of the public to obtain court documents, which may cause some businesses to consider resolving their disputes through confidential means such as arbitration or mediation”.

In practical terms, the guidance note outlines a process where documents which are deemed to be public domain documents for the purposes of the pilot must be filed at court on the public-facing part of CE-File, the electronic filing system used in the pilot courts and other parts of the English High Court. Whilst some of these documents may already have been filed by the parties on CE-File at an earlier stage in the proceedings, under the pilot all parties will be required to file the relevant documents on a ‘public view’ section of CE-File within a certain period of time.

As a general rule, documents must be filed within 14 days from having been referred to in court. However, this timeframe will not apply to skeleton arguments and written opening or closing submissions, where the filing period is two clear days after the hearing or hearing day at which those documents were relied upon.

Aldwinckle said that the proposed practice direction contains provision for an order to be made compelling a party to make the appropriate filing. “Such an order would be amenable to the usual sanctions by way of contempt of court if not complied with, however, it is not anticipated that this will be the norm given professional court users are alive to the importance of open justice,” she said.