Practice Direction 51ZH – The New Transparency Scheme in English Commercial Litigation

Introduction

Practice Direction 51ZH introduces the Public Document Disclosure Pilot ("the Pilot"), a significant pilot scheme aimed at enhancing open justice by widening public access to key court documents used in civil proceedings. 

The scheme is currently intended to operate for a two‑year pilot period, commencing on 1 January 2026 and ending on 31 December 2027. Despite its limited duration, the Pilot has already begun to influence how parties approach commercial litigation in England and Wales.

The Pilot does not apply across all civil courts. Instead, it is confined to certain specialist jurisdictions (the “Pilot Courts”), namely:

• The Commercial Court, including the London Circuit Commercial Court, within the King’s Bench Division; and
• The Financial List, operating in both the Commercial Court and the Chancery Division.

For the Pilot to apply, proceedings must be taking place in one of these courts, and the relevant hearing must be held in public.

Scope of the Pilot Scheme

PD 51ZH applies only to documents that are filed for, or used at, public hearings during the pilot period. These documents are collectively referred to as “Public Domain Documents” and include:

• Skeleton arguments;
• Written opening and closing submissions, and other written submissions relied upon at the hearing;
• Witness statements and affidavits (excluding exhibits);
• Expert reports (including annexes and appendices);
• Documents agreed between the parties; and
• Any other document that the court considers to be “critical to the understanding of the case”.

Where documents fall within scope, they must be filed on the public side of CE‑File, making them accessible to non‑parties without the need for a separate court application. At present, this filing obligation does not apply to unrepresented parties.

Rationale and Impact on Open Justice

The primary rationale behind the Pilot is to expand public access to court documents and to modernise the principle of open justice in the context of increasingly written advocacy.

Under the previous regime, non‑parties seeking access to documents beyond statements of case and judgments generally had to apply under CPR 5.4C or rely on the court’s inherent jurisdiction. The Pilot significantly reduces that procedural barrier by making key hearing documents available as a matter of course.

Judicial Control and Confidentiality Safeguards

Despite the enhanced transparency, the Pilot preserves robust judicial control over access to documents. The court retains the power to restrict or modify access to Public Domain Documents where appropriate. In particular, it may:

• Make orders restricting access to specific documents;
• Grant Filing Modification Orders ("FMOs"), permitting redaction or limitation of material before public filing; and
• Uphold or supplement existing confidentiality or anonymity orders, including those made under CPR 39.2.

Any obligation to provide access under the Pilot is expressly subject to such orders. This ensures that commercially sensitive information, personal data, or other protected material can still be safeguarded where the interests of justice so require.

Practical Implications for Commercial Litigants

For high‑value commercial disputes—where pleadings, witness statements and expert reports frequently contain confidential or market‑sensitive information—the expanded public availability of these documents presents a real challenge.

As a result, some parties are increasingly considering alternative dispute resolution ("ADR") as a means of avoiding the risk of sensitive information entering the public domain.

Crucially, confidentiality can no longer be assumed simply because information is embedded in evidence rather than pleadings. Litigants must therefore be far more deliberate in how confidential material is handled. Confidentiality should be treated as an active, front‑loaded process, rather than a reactive exercise undertaken once disclosure risks have already materialised.

Conclusion

The Pilot represents a material shift in the balance between transparency and confidentiality in English commercial litigation. By making key hearing documents publicly accessible as a matter of course—while preserving judicial discretion to restrict access—the pilot seeks to recalibrate open justice for an era dominated by written submissions.

The outcome of the pilot will be closely watched, not only for its potential extension beyond the Commercial Court and Financial List, but also for its broader impact on litigation strategy. Legal teams should implement an early confidentiality audit wherever it is anticipated that hearing documents may contain trade secrets or commercially sensitive information.

Advance preparation, careful document drafting and early engagement with confidentiality protections will become significantly more important than under the previous regime, placing an even greater premium on experienced legal input at the outset of proceedings.