Access to public domain documents - a step towards open justice
20/11/2025
In a welcome development, from 1 January 2026 a two‑year pilot scheme will make an increased range of court documents publicly accessible through the CE‑File system, the online system used by legal professionals to upload documents to the court.
The principle behind the scheme is simple enough: justice should not only be done, but be seen to be done.
Much of what forms litigation is now made up of written documents rather than the more traditional oral advocacy. This means that documents like skeleton arguments, witness statements, expert reports, and detailed written openings and closings often form the backbone of a case, yet because they are not one of the more traditional documents such as the Particulars of Claim or the Defence they remain effectively hidden from public view.
For a reporter trying to decipher what has happened in proceedings it can often be difficult to grasp the opposing sides of the argument without being able to see the positions taken by each in full detail.
The need for greater transparency in general has long been recognised and following the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring (2019) non‑parties have been able to apply for access to documents used in open hearings.
The difference under the new pilot scheme will be that instead of requiring outsiders to apply, parties to proceedings will be required to upload key documents proactively unless they can persuade the court as to why this should not happen. It is worth noting that the pilot applies only to open hearings; private hearings and those concerning anonymised proceedings will not be included.
The pilot scheme gives effect to an update to the Civil Procedure Rules, which provides, amongst other things, that skeleton arguments must be filed online within two days of a hearing, while other documents such as witness statements and expert reports with appendices, must be uploaded within 14 days of use.
Importantly, documents “critical to the understanding of the hearing” must also be shared, though little guidance is offered as to the definition of this term. In the case of longer, more complex proceedings this could result in a veritable treasure trove of documents being uploaded in a form which attracts legal privilege for reporting purposes.
However, it’s not all sunshine and rainbows, as not everything will be made public. Whilst items like witness statements are covered by the scheme, the exhibits often annexed to them are excluded on the basis that judges rarely read them in full. In contrast, annexes to expert reports will be included, on the basis that they help make technical evidence more digestible.
In addition, the pilot scheme will only cover certain courts, including the Commercial Court, the London Circuit Commercial Court and the Financial List (Commercial Court and Chancery Division) before being extended to other courts if deemed a success.
It should also be noted that Parties to the proceedings who may be concerned about revealing sensitive material can raise concerns with the judge at the start of proceedings and/or apply for Filing Modification Orders (FMOs) to redact information.
These FMOs can also be ordered by Judges on their own initiative but once in place, a non-party can make an application to obtain an unredacted copy of the document in question, in the same way that applications to access court documents are currently made by non-parties.
The potential benefits of the scheme from an open justice perspective are clear to see. There should be greater access to documents that form part of proceedings.
Never mind that policy makers will see the scheme as naturally leading to increased visibility of the system thus strengthening public confidence in its fairness. Easier access to documents will allow for more detailed reporting by hard pressed journalists, so enabling the public to gain valuable understanding of how arguments are framed and decisions reached in cases of significant public interest.
With presumed access now the default position, this pilot scheme represents the removal of a significant hurdle in the reporting of court proceedings. Only time will tell if the reality is as positive, but with an initial review due to take place 6 months after commencement, we won’t have long to wait.
That said, the risk is that if there is little uptake of this temporary right to access Court documents, the powers that be will conclude that there is no great demand for this kind of transparency, and the experiment could be quietly dropped. So the message to specialist Court reporters is clear: use it or lose it!