Documents prepared for commercial litigation may become accessible to people who are not involved in the proceedings.
The general rules already allow non-parties to obtain specified statements of case and public judgments or orders. Since 1 January 2026, a pilot operating in several commercial courts has also made a wider category of hearing documents available through the public-facing CE-File system.
Non-party access to court documents means the ability of someone who is not involved in the proceedings to obtain or inspect specified documents held by, filed with or used before the court.
The rules do not make an entire court file public. Access depends on the type of document, the stage reached by the proceedings, the court involved and whether an order limits access.
Businesses involved in commercial litigation should consider these issues before statements of case, witness evidence, expert reports and written submissions are finalised. Once a document has been used at a public hearing, it may be difficult to restore confidentiality retrospectively.
What court documents can a non-party obtain?
Under CPR 5.4C, a non-party may generally obtain a copy of a statement of case and a judgment or order made in public.
Statements of case include documents such as the
- claim form,
- particulars of claim,
- defence; and
- reply.
However, the right does not automatically extend to documents attached to or served with the statement of case
Access is also subject to procedural conditions. A statement of case will generally become available after the defendant has filed an acknowledgment of service or defence, the claim has been listed for a hearing or judgment has been entered. A person cannot necessarily obtain the documents simply because the claim has been issued.
Other documents filed with the court will usually require the court’s permission unless another rule or practice direction provides a separate right of access.
Witness statements are subject to a distinct rule. Under CPR 32.13, a witness statement which stands as the witness’s evidence in chief is open to inspection during the trial unless the court directs otherwise. This is not an unrestricted right to obtain every witness statement before or after trial.
Public access must also be distinguished from disclosure between the parties. A document does not become publicly available merely because it has been disclosed to another party during the proceedings.
What does the 2026 open justice pilot change?
The Access to Public Domain Documents Pilot operates from 1 January 2026 until 31 December 2027.
It applies in the Commercial Court, the London Circuit Commercial Court and the Financial List. It covers specified documents used or referred to at public hearings in both existing and new proceedings before those courts.
Under Practice Direction 51ZH, a document falling within the pilot categories becomes a public domain document when it is used or referred to at a public hearing, subject to any order made by the court.
The party responsible for the document must then file it using the appropriate public designation on CE-File. Once filed, any person may obtain a copy through Public Access CE-File without first making the usual application for the court’s permission.
The pilot does not replace CPR 5.4C or existing rights of access. It creates an additional route for obtaining specified documents used in public commercial court hearings.
It also does not override an existing confidentiality order or another direction made by the court.
The filing requirement does not apply where a party is unrepresented and has not already filed a document in the proceedings through CE-File.
Which court documents are covered by the pilot?
The pilot covers
- skeleton arguments,
- written opening and closing submissions; and
- other written submissions provided to the judge and relied upon at the hearing.
- witness statements and affidavits relied upon at trial or at a public application hearing. Documents appended or annexed to a witness statement are not automatically included.
- Expert reports relied upon at a public hearing are covered, together with their annexes and appendices.
A judge may also direct that another document is a public domain document where it is critical to understanding the hearing. The parties can agree that a document should be treated in the same way.
A document does not become public merely because it is mentioned in another public document. It must independently fall within one of the specified categories or be designated by agreement or court order.
The filing timetable varies. Skeleton arguments and written opening or closing submissions must generally be filed within two clear days after the start of the hearing, or the hearing day on which they are relied upon.
Other qualifying documents must generally be filed by 4 pm on the fourteenth day after they are used or referred to at the hearing. The court may direct a different period, and the parties may agree to earlier filing.
Businesses should therefore not assume that a relevant document will appear online immediately. Equally, they should not wait until the filing deadline before considering whether protection is required.
Can businesses protect confidential information?
The court can restrict access where there is a proper basis for doing so.
Under Practice Direction 51ZH, the court may make a Filing Modification Order. This can prevent non-parties from obtaining a document, waive or restrict the filing requirement, require editing or redaction, alter the filing period or impose another appropriate restriction.
- An order can be made on the court’s own initiative or requested by a party. A non-party who is named or referred to in the document may also apply.
- Where possible, an application should be made before the document becomes subject to the filing requirement. The request should explain why protection is necessary and provide supporting evidence where appropriate.
- Describing a document as confidential is not, by itself, sufficient. The court must balance the open justice principle against the particular reason for restricting access.
Potentially relevant material may include commercially sensitive pricing, trade secrets, confidential business methods, personal financial information and information affecting third parties. Whether protection will be granted depends on the document, the role it plays at the hearing and the consequences of publication.
The court may prefer focused redactions to withholding an entire document. Parties should therefore identify the particular passages requiring protection and explain why narrower measures would not be sufficient where broader restrictions are requested.
The pilot also preserves pre-existing orders, including confidentiality orders under CPR 39.2.
A business should raise confidentiality concerns during legal case management, rather than assuming they can be addressed once the hearing has ended.
What should parties do before a public hearing?
Parties should first identify which documents are likely to be used or referred to at the hearing and whether the proceedings are taking place in one of the pilot courts.
Statements of case, witness statements, expert reports and written submissions should then be reviewed with possible public access in mind. Relevant evidence must not be omitted or altered simply because it is commercially sensitive. However, unnecessary confidential detail should not be included where it does not assist the court or form part of the case that must properly be presented.
Particular care should be taken when preparing witness statements and expert evidence. The factual and expert evidence should remain accurate and complete, while confidential material requiring protection should be identified before the document is relied upon.
The parties should also consider whether a redacted public version could be prepared without preventing the court or a reader from understanding the hearing.
Where a Filing Modification Order may be required, the application should be prepared early. Practice Direction 51ZH expects a party seeking protection to make its request as soon as practicable and before the relevant filing period begins.
Businesses should also consider the wider commercial consequences of public proceedings when choosing how to resolve a dispute. Court litigation may still be necessary, particularly where urgent relief or a binding determination is required. In suitable cases, negotiation or mediation and alternative dispute resolution may provide a more private route to resolution.
The open justice pilot increases transparency in significant commercial cases, but it does not remove the court’s ability to protect information where restriction is properly justified. Early planning remains important because decisions about evidence and confidentiality made before a hearing may determine what later enters the public domain.
Francis Wilks & Jones advises businesses, directors and individuals on commercial litigation, confidential evidence and applications concerning access to court documents in England and Wales.
