Commercial Court issues first judgment on Filing Modification Orders under document access pilot

The Commercial Court has made a Filing Modification Order (FMO) in respect of court documents that would otherwise be available as of right to the public where there was a material risk that information disclosed might compromise the conduct of criminal proceedings: Various Claimants v Entain Plc [2026] EWHC 1511 (Comm).

A new pilot scheme to improve public access to a broad range of court documents came into force in the Commercial Court, the London Circuit Commercial Court and the Financial List in January 2026. The default position under the pilot is that parties are required to re-file such documents on the public facing court file (the CE-File) once they have been used or referred to at a public hearing. However, where particular confidentiality concerns arise, the court has a discretion to make an FMO to exclude particular documents, or sections of documents. 

In what appears to be the first published judgment on FMOs, the Commercial Court has considered the approach a court should take. The starting point is that non-party access to court documents without a court order is important for reasons of open justice and transparency. When it comes to modifying such access, the court must balance the value of the information in advancing open justice against the risk of harm that uncontrolled disclosure may cause to the judicial process or to the legitimate interests of others. Where, as in this case, there was substantial and significant overlap between civil and criminal proceedings, serious consideration must be given to restricting access to court documents to protect the integrity of the criminal proceedings.

Background

CPR PD 51ZH on Access to Public Domain Documents is a pilot scheme that began in January 2026 and applies to the Commercial Court, the London Circuit Commercial Court and the Financial List. It was introduced to facilitate public access to a broad range of documents defined as "Public Domain Documents", which include skeleton arguments, written submissions, witness statements and affidavits, experts' reports and any document ordered by a judge to be a public domain document. 

Once filed, a third party can obtain copies of Public Domain Documents as of right for a small fee (typically £11), rather than having to apply under CPR 5.4C (Supply of documents to a non-party from court records). However, the court has a discretion to make an FMO that restricts access, including by waiving or restricting the filing requirement or requiring a document to be edited or redacted. 

The application for an FMO in this case was made in the context of shareholder claims brought against the defendant company which alleged that the defendant had engaged in historic misconduct involving bribery with the knowledge of various of its personnel. A number of those individuals had also been charged with criminal offences arising out of the same alleged misconduct.

The Crown Prosecution Service (CPS), an interested party to the proceedings, applied for an FMO on the basis that measures were needed to ensure that steps taken in the civil proceedings did not jeopardise the fairness of the criminal trials. 

All represented parties agreed that there was significant overlap between the issues in the two sets of proceedings and a material risk that unrestricted public access to unredacted civil documents could compromise the criminal trials. Neither the claimants nor the defendant in the civil proceedings were party to the criminal proceedings. 

The criminal trials were listed to take place before the civil proceedings, but preparatory steps and interlocutory hearings were likely to have taken place in the civil proceedings during the period leading to the criminal trials. 

Decision

The High Court (Trower J) made an FMO waiving the filing requirement but requiring the parties to place a placeholder on the public access CE-File for each Public Domain Document, identifying the nature of the document and expressly noting the right of a non-party to apply to court for access.

The court noted that CPR PD 51ZH is drafted in broad terms and does not identify the factors that a court must consider when deciding whether to make an FMO, and that no previous decision appeared to deal with this issue.

It seemed to the court that the underlying principles must draw heavily on those explained in Dring v Cape Intermediate [2020] AC 629 (reported here), in which the Supreme Court clarified the scope of the court's discretion to grant non-party access to court documents and expressed concern about limits on public access. These principles should be adapted to reflect the pilot procedure. 

The starting point is that the grant of access to a wider range of documents without a court order is an appropriate means of advancing the principle of open justice in courts that are subject to the pilot. This supports the public policy that as much as possible of proceedings should be conducted in public, and transparency in conducting litigation is an important part of the process of ensuring that justice is done.

However, the power to make an FMO also gives the court a discretion to modify the rights which a party might otherwise have under CPR PD 51ZH. In exercising that discretion, the court must balance the value of the information in question to advancing open justice against, among other things, the risk of harm which uncontrolled disclosure may cause to judicial process or to the legitimate interests of others. This includes the interests of those engaged in concurrent criminal proceedings dealing with the same events and circumstances.

If the exercise by third parties of their automatic rights under CPR PD 51ZH were to increase the risk of information prejudicial to the fairness of criminal proceedings leaking into the public domain, that must weigh heavily in favour of making an FMO. In practice, where there is substantial and significant overlap between criminal and civil proceedings, serious consideration must be given to restricting access to documents that would otherwise be available.

All parties, including the CPS, accepted that a material amount of information in the Public Domain Documents would need to be redacted if they were going to be filed, in order to prevent the risk of information prejudicial to the integrity of the criminal proceedings ending up in the public domain and becoming available to jurors. However, the parties to the civil proceedings were not parties to the criminal proceedings and were not well placed to judge what redactions were necessary. Nor was it part of the CPS's role to act as gatekeeper over a redaction process.

In this case, the right balance would be struck by the court making an FMO waiving the filing requirement but requiring the parties to place a placeholder on the public access CE-File for each Public Domain Document. This must identify the date and nature of the document, the date and nature of the hearing at which it was first used or referred to in public, and the party by whom it was filed. It must also draw specific attention to the right of any non-party to apply for access under paragraph 19 of CPR PD 51ZH. Any such application must be notified as soon as practicable to the CPS and the defendants in the criminal proceedings, so that all interested parties could participate. 

The court also made a reporting restriction order under s.4(2) of the Contempt of Court Act 1981, restricting contemporaneous reporting of the civil proceedings. This was consistent with an existing order restricting dissemination granted in the context of the deferred prosecution agreement between the defendant and the CPS. Acting to restrict reporting at this stage would minimise the risk of prejudicial leakage and was consistent with good case management.

The court was satisfied that the FMO, together with the reporting restriction order and the listing of the civil trial after the conclusion of the final criminal trial, struck the right balance between maintaining the open justice principle and minimising the risk of information prejudicial to the criminal proceedings leaking into the public domain.