Open justice is one of the key pillars upon which English law stands. In line with this, on 1 January 2026 the Access to Public Domain Documents Pilot – a two-year scheme – was introduced. It requires parties in the Commercial Court to file specified documents through the HMCTS Portal – the tool we all know as CE-File. Documents caught by PD 51ZH include skeleton arguments, written submissions, witness statements and affidavits and expert evidence.
Lady Justice Cockerill announced the initiative in July 2025, describing it as ‘simple, cheap, quick and risk-free’. For all intents and purposes, it has been well received by the profession. For many, this opening of digital access to court files is an obvious course: an attempt to catch up with how most practitioners work. We already access legislation, case law and legal commentary digitally as a matter of course. In a true open justice system, court documents should arguably be no different.
The need for judgments to be more widely available was discussed by the Supreme Court in Cape Intermediate Holdings v Dring [2019] UKSC 38. In Dring, Lady Hale referenced the criminal case of R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618 at [79]. This sets out that the purpose of open justice ‘is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators’.
Previously, non-parties seeking documents had to justify their need to access material. Now, it will be for any party seeking a restriction to instead justify withholding such material. Lady Justice Cockerill has indicated that judges ‘are going to take some persuading that a document read out in court should be subjected to a modification order’. PD 51ZH therefore enables precisely what Lady Hale had in mind in Dring. Open justice is not served by documents being theoretically accessible to the public but must instead be made practically and readily available to those seeking them.
The impact is likely to be felt differently for parties, depending on which side of the dispute they fall on. For claimants pursuing legitimate claims, it is likely that the pilot will be welcomed as an opportunity to readily access material that may otherwise have been tricky and time-consuming.
While transparency is, of course, the core purpose of the pilot, it is important to consider whether this core value could be exploited by claimants and defendants seeking information that could benefit their business interests. PD 51ZH does make some attempt to protect against this by allowing for Filing Modification Orders. These would allow parties to seek to restrict or redact certain information where that information is genuinely confidential. The Guidance Note provides at paragraph 25 that this is likely to be an informal process as part of the trial hearing, though it is easy to see how this process may become contentious.
No doubt AI companies may seek to bolster their offering to law firms by accessing all filed submissions and feeding them to their large language models, allowing parties to prepare draft submissions ‘in the style of’ a particular case or a particular counsel (or specific counsel). These models may also be able to predict what submissions are most likely to be successful, what issues judges are most and least likely to grapple with, and determine which formulations of expert evidence are most likely to be carry the most weight, as well as what cross-examination techniques are most successful.
It is also possible that the pilot may have a net benefit for litigation funders. Take, for example, a funder conducting due diligence on potential claims. These funders will now have access to a treasure trove of information about parties with a history of litigation, both on the claimant and on the defendant side, looking at historical behaviour, and propensity to settle and when. Funders may be able to determine whether to fund based on patterns of behaviour (assisted with AI) and transform funding decisions from reliance on what the claimant says its case is, to third-party data-driven risk profiling.
Defendants who would prefer to keep a low profile and those with concerns as to confidentiality and reputation are unlikely to welcome this scheme. While non-confidential and non-private information is technically already available, administrative hoops have likely provided some protection for businesses. These prevent claimants and third parties from sifting through previous decisions to fish for useful information, particularly in witness evidence.
Repeat defendants also have a more serious problem, as patterns in their litigation past will become readily accessible. Successful claimants with similar claims will be leaving behind a playbook with which to beat defendants.
The use of experts also adds a layer of complexity. Expert reports (including the evidence attached to them) will become public domain documents when relied upon at trial. Expert witnesses, particularly in specialist areas, may have their testimony across multiple cases readily accessible, making any contradictions embarrassing. Claimants may be able to easily identify whether a methodology used by an expert in one case contradicts the approach taken in another, and to track whether opinions have been modified to suit a particular narrative.
It may be easier to launch credibility attacks in cross-examination, which may cause many to become wary of taking part in litigation, or to reconsider their rates.
Administrative barriers made the use of previous case documents unusual. Court attendance requirements, formal access applications, and physical file inspection have created cost, delay and uncertainty. PD 51ZH removes those barriers. Parties, litigation funders and their advisers should expect to see prior materials such as skeleton arguments, expert reports and witness statements deployed systematically as standard litigation intelligence. The pilot may advance open justice, but it may also alter strategic behaviour in commercial disputes.
Natalie Todd is honorary secretary of the London Solicitors Litigation Association and a partner at Cooke Young & Keidan. Polly Fletcher is a senior associate at Cooke Young & Keidan
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