No Public Access: PD 51ZH Varied To Protect The Integrity Of Criminal Proceedings

Under the “Access to Public Domain Documents” pilot (the Pilot), non-parties to a dispute can obtain certain types of documents (such as skeleton arguments, witness statements and expert reports), which have been used at a hearing held in public (Public Domain Documents). This means that non-parties (including members of the public, the press and competitors) can obtain a much broader range of court documents than was previously the case, without an application to court and essentially as an administrative process (requiring only payment of a small fee). 

One important filter on this system is the ability of the court to make a “filing modification order” (FMO) which, in effect, waives or modifies the obligation on parties to make documents available to the public (via the court filing system). In Various Claimants v Entain Plc [2026] EWHC 1511 (Comm), the court considered the circumstances in which an FMO should be made in what is understood to be the first case of its kind.

Background

This case arises out of historic allegations of misconduct made against Entain PLC (Entain), which is said to have failed to prevent payment of bribes in connection with its business in Turkey. This is alleged to have been done with the knowledge of a number of persons discharging managerial responsibilities (PDMRs) at Entain. These allegations have resulted in at least two sets of litigation:

1. a civil claim brought by shareholders against Entain under ss.90 and 90A of the Financial Services and Markets Act 2000; and
2. criminal prosecutions of individuals, including a number of PDMRs named in the civil proceedings.

In view of the overlap, the CPS wanted to ensure that no documents created in the civil proceedings would pass into the public domain in a way that could jeopardise the fairness of the criminal proceedings. As one of the steps necessary to achieve this, the CPS applied for an FMO.

Outcome

Mr Justice Trower (who was on the working group responsible for the Pilot) made the following points about the operation of the Pilot.

• The Pilot makes an important change because non-parties now have a legal right to obtain Public Domain Documents (subject to the making of an FMO), whereas previously an application to court was required.
• This is intended to support and bolster the open justice principle which requires that, in so far as possible, civil claims should be conducted in public.
• Although the starting point under the Pilot is different (in that the default position is that Public Domain Documents are available), when exercising its discretion whether to make an FMO the court should apply existing principles from previous cases where access to documents has been sought, in particular those set out by the Supreme Court in Dring v Cape Intermediate [2020] AC 629 (Dring).
• This involves balancing the value of the information in question in advancing the open justice principle against, amongst other things, the risk of harm which uncontrolled disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.
• In Dring, the Supreme Court recognised that the legitimate interests of others included the interests of those engaged in contemporaneous criminal proceedings dealing with the same events and circumstances as civil proceedings. If, as in this case, Public Domain Documents contain information that could jeopardise the fair conduct of criminal proceedings, this will weigh heavily in favour of the making of an FMO.

Applying those principles, the judge accepted that there needed to be some restrictions on access to Public Domain Documents. The general rule is that, where there are derogations from the open justice principle, these should be kept to a minimum. One option was to require the parties to file Public Domain Documents - but with redactions. However, the judge decided against this approach on the basis that requiring the parties to the civil proceedings to decide what redactions would be appropriate would impose too great a burden on them – not least because they were not parties to the criminal proceedings and so not best placed to decide what redactions should be made. 

The judge also wanted to ensure that non-parties were aware of their right, under paragraph 19 of the Pilot, to apply for unredacted copies of Public Domain Documents where an FMO has been made. This balance was achieved by waiving the parties’ obligation to file Public Domain Documents but requiring them instead to file a placeholder providing details of the documents that would have been filed but for the FMO and specifically drawing attention to the rights of non-parties to apply for access to those documents. The judge said that any such application should be on notice to the CPS and the defendants in the criminal proceedings.

Comment

The Pilot does not identify the factors which the court is required to take into account when considering whether or not to make an FMO and the judgment in this case records that none of the parties were able to identify any previous decision on that point. It is, therefore, helpful to have this guidance, even if the test envisaged by the judge - a balancing act between open justice and the legitimate interests of others - is likely to be very fact specific.

In this case, all parties concerned agreed that there needed to be some restrictions on the publication of Public Domain Documents in order to ensure the fair conduct of the criminal proceedings. As noted above, it was recognised in Dring that the existence of contemporaneous criminal proceedings is an important consideration and in that context it is perhaps not surprising that an FMO was made, albeit with a mechanism in place to ensure that non-parties are aware of their right to apply to the court for copies of Public Domain Documents.

In Dring, the Supreme Court said that the protection of privacy interests, and the protection of trade secrets and commercial confidentiality, might also be reasons for denying non-parties access to documents. It follows that those interests can in principle also be reasons for the making of an FMO. However, given the importance attached to the open justice principle, a party seeking an FMO on any of those grounds will likely need to provide strong and specific reasons why their interests outweigh the rights of non-parties to obtain Public Domain Documents.

Macfarlanes is a pre-eminent law firm advising a global client base across Private Capital, Private Wealth, M&A and Disputes.

Visit our website to learn more about our services and how we can assist.