A hallmark of litigation in the US is the ease with which the press and public can access materials on the court docket, making publicity a key consideration in US proceedings. Historically, public access to documents on the UK Court file has been more limited. But, the Courts of England & Wales are on the verge of an important change, bringing them a step closer to the US model of more open public access to court documents.
Proposed revisions to the UK's procedural rules are set to increase access to the Court file in civil cases, with more categories of document more readily available to the public. Under a two-year pilot scheme expected to launch in October 2025, a wide range of documents filed with the Commercial Court (including the Financial List) will be automatically available to the press and public through the CE-file (the court's docket system).
Background
The current position in English civil procedure, as set out in CPR 5.4C(2), is that any person can apply, for a fee, to access claim documents, such as statements of case (but not their appendices). The Supreme Court's decision in Cape Intermediate Holdings Ltd v Dring1 held that non-parties to a claim can apply to view documents placed before the Court and referred to during a hearing. However, non-party applicants must justify their request for court documents by showing it is in the interest of open justice. The Court will then balance this against any potential harm to the judicial process or others' legitimate interests. In short, public access to these documents is possible, but cumbersome and not the default position.
The Pilot Scheme
The Pilot Scheme has received approval from the Civil Procedure Rules Committee ("CPRC") and is expected to commence on 1 October 2025, subject to ministerial approval. Although the full text is not yet available, the Pilot Scheme is set to be implemented under Practice Direction ("PD") 51. Key aspects of the scheme include:
- Scope: The Scheme would apply to the Commercial Court, London Circuit Commercial Court and the Financial List. These courts hear many of the highest value cases.
- Duration: Trial period of two years.
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Document Accessibility: The public will have automatic access to parties' skeleton arguments, written opening and closing submissions, witness statements and affidavits (excluding exhibits), and expert reports (including exhibits), all of which will have to be filed on the public side of the CE-file once they have been referred to in open court (i.e. after the trial/hearing).
Controversially, judges may also order other documents "critical to the understanding of the hearing" to be made publicly accessible in the same way.
- Exclusions: Private or confidential hearings will not be included in the Pilot Scheme. Litigants in person will also not be required to file their documents publicly.
- Default Publication: The default position under the Pilot Scheme is for the documents referred to above to be made publicly accessible. Parties wishing to withhold documents from public view, or file partially redacted versions, must seek a Filing Modification Order ("FMO"). The Pilot Scheme aims to make this a relatively informal process, allowing requests for FMOs during trials or hearings where appropriate. Non-parties can also seek a retrospective FMO.
Impact of the Pilot Scheme
US-style open access
The approach taken in the Pilot Scheme mirrors the US approach to open justice, which recognises a "general right to inspect and copy public records and documents, including judicial records and documents".2 In practice, for US federal cases, the public are able to access most documents filed in court cases through the federal Public Access to Court Electronic Records (PACER) system, with similar access to court documents available in state courts as well.3
Bringing the UK system in line with the US is a positive yet challenging development. Increased transparency is inherently desirable, giving greater confidence in the quality and independence of the judicial process. However, with the press and public freely able to access key documents (such as witness statements and expert reports) there are concerns that publicity may play a disproportionate role in the litigation process; equally, there may be unintended consequences in having sensitive details in court filings freely available to the public, including to competitors of the parties.
The availability of documents considered "critical to the understanding of the hearing" by the judge also raises the prospect that documents obtained by a party during the disclosure process could become available to a wider audience, absent protective steps being taken.
Ultimately, the drive for transparency could well be perceived by commercial parties as a reason to prefer arbitration, with its greater levels of confidentiality, over the English Courts.
Use of confidentiality rings
A further concern with the new Pilot Scheme is its impact on the use of confidentiality rings. With documents such as witness statements and expert reports otherwise readily available to the public, this could see an increase in parties seeking to protect their confidential information by agreeing to confidentiality rings, taking the documents in question outside the scope of the Pilot Scheme. Indeed, this is akin to the solution frequently adopted by litigants in the US, where agreed protective orders (which generally provide for documents produced in discovery to remain confidential) are "routinely" endorsed by the courts.4 However, in the US, even where protective orders have been agreed, the courts apply a high bar for parties to maintain the confidentiality of materials submitted to a court (by allowing them to be filed under seal).
In England, a recent judgment of Mrs Justice Cockerill from 2024, which involved a claim that certain documents within a confidentiality ring be de-designated and removed from the ring, highlighted that confidentiality orders are the exception, not the rule, precisely because they involve "a departure from the open justice principle which must be justified".5 Applying this logic, the courts may well continue to take a relatively strict approach to confidentiality rings in the future, and that these (and the new FMOs) may not be routinely available.
Practical challenges
Further practical impacts of the Pilot Scheme for lawyers and their clients to bear in mind include:
- Publicity: Reputational and commercial risks are heightened when media outlets and competitors can obtain court filings without the need to obtain court permission.
- Third Parties: Significantly, while parties to a litigation can apply for an FMO in advance of a hearing, it appears that a non-party may only be able to apply retrospectively for an FMO once the document in question has already been referred to in open court.
- Use in overseas proceedings: Having documents publicly available in the UK may have an impact on related proceedings in other jurisdictions, with parties able to access documents on the Court file in the UK prior to disclosure in their jurisdiction, or even prior to bringing a case.
- Drafting strategy: The fact that written submissions and evidence will be publicly available, will doubtless impact the way in which parties put their case.
- Settlement strategy: Under the Pilot Scheme, documents would only be publicly available once referred to in open court – that is, once they have been used in a hearing or at trial. This could well influence settlement discussions. The threat of adverse publicity from a public hearing or trial is already an important consideration in settlement discussions. That will be all the more so if a party is also concerned about the possibility of sensitive information on the court file coming into the public domain.
Ultimately, the full impact of the Pilot Scheme will only become clear once it receives ministerial approval and is in operation. Should you wish to discuss the Pilot Scheme and any potential impact on your case or overall litigation strategy, please reach out to our Commercial Litigation team.
Amber Richardson (Trainee Solicitor, Stockholm, White & Case) contributed to the development of this publication.
1 Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38.
2 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978).
3 United States Public Access to Court Electronic Records website <https://pacer.uscourts.gov/>.
4 Nissim Corp. v. Wal-Mart Stores, Inc., 2017 WL 7803814, (S.D. Fla. Dec. 12, 2017).
5 Aurora Cavallari & Ors v Mercedes-Benz Group AG & Ors [2024] EWHC 190 (KB) at [26].
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