The UK’s Practice Direction 51ZH launches a two year pilot to improve public access to documents used in hearings in certain business courts. Broadly, the practice direction is intended to move from the current ad hoc, application?driven disclosure (often requiring a fee) towards a default of timely provision of public domain documents for free. It does not cut across existing privilege rules or confidentiality protections.
This practice direction responds directly to the UK Supreme Court’s decision in Dring[1], which highlighted both the principle of open justice and the practical difficulties nonparties face in obtaining documents that, in substance, are already in the public domain once deployed in open court. The judiciary has sought to promote the principles of open justice by establishing the Transparency and Open Justice Board in 2024 with the stated aim of putting ‘openness and transparency at the heart’ of the justice system. Practice Direction 51ZH is one of the key developments towards this goal.
How does it work?
Practice Direction 51ZH creates a pilot scheme operating from 1 January 2026 to 31 December 2027 in the Commercial Court, the London Circuit Commercial Court and the Financial List[2]. It applies to documents that become ‘public domain documents’ because they are used or referred to in a hearing held in public during the pilot period.
Practice Direction 51ZH defines the main categories of public domain documents:
- Skeleton arguments
- Written opening and closing submissions
- Other written submissions provided to the judge and relied on
- Witness statements and affidavits (but not their exhibits)
- Expert reports, including their annexes and appendices
Somewhat controversially, the court may also order that any other document critical to understanding the hearing be treated as a public domain document (a so-called ‘key document’) – for example, a contract that is extensively referred to so pervasively that one cannot properly understand the arguments without reference to it. The parties can also agree to additional documents between themselves. Importantly, a document merely referred to in a public domain document does not itself become public unless it falls within these categories or is brought in by order or agreement.
Practice Direction 51ZH requires parties to file the public domain document on a public version of CE-File within the relevant filing period. For skeletons and written submissions, the filing period is two clear days from the start of the hearing at which they are relied upon. For other public domain documents, the filing period runs from the day the document is used or referred to in court and ends at 16:00 on the 14th day thereafter, unless the court orders a different timetable (likely due to complex trials with numerous public domain documents) or the parties agree to an earlier filing. Once filed, any person – including nonparties – may obtain copies via the public CE?File portal, subject to any order restricting access.
If a party does not comply with this filing requirement, then the court may order that party to file the document that has not been filed. There is no immediate penalty (with regards to costs or otherwise), but failure to comply with an order of the court will be treated as contempt in the ordinary course.
Are there restrictions?
A party (or nonparty) may make an application for a filing modification order (FMO), or the court may make an FMO of its own initiative. An FMO can restrict or waive filing, require redactions, adjust the filing period or otherwise regulate access. There is no specific guidance given as to the grounds or evidence that must be provided in order to persuade the court to exercise its discretion. Indeed, Practice Direction 51ZH explicitly states that the court anticipates any such applications to be rare. We expect that the type of arguments to be raised will focus on the potential damage caused to a party (or nonparty) if confidential or sensitive information is released to the public and that such damage outweighs the interests of open justice.
What does it mean?
While Practice Direction 51ZH does not amend the fundamental principles of open justice, it does, for practitioners, materially shift the practical burden onto them to make the necessary public filings of public domain documents. These new public filing requirements will certainly need to be factored into any case management timetable.
We may also see this requirement impact client advice on the now potentially increased risks of publicity as the pilot fundamentally changes the working assumptions around publicity in the Commercial Court and Financial List. Parties should plan from the outset on the basis that the written materials they deploy in open court will be made available publicly within short deadlines. It is also inevitable that parties will seek to use these mechanisms strategically to force their opponents to make public certain unhelpful or reputationally damaging documents by arguing that they are ‘key documents’ in the case. It is possible, therefore, that the dial may shift, with parties favouring more confidential mechanisms of dispute resolution such as arbitration or mediation and providing for these in boilerplate contractual clauses.
Certainly, close attention should be given to Practice Direction 51ZH, the accompanying guidance note and the early steps taken to secure FMOs should they be considered strictly necessary for commercially sensitive information.
[1] Cape Intermediate Holdings Ltd (Appellant/Cross Respondent) v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) (Respondent/Cross Appellant) [2019] UKSC 38
[2] Except where a party is not legally represented and has not used the CE-File system before.
Contributors
Ben Sharrock-Mason