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While the United States has long embraced broad public access to court proceedings and records, many European courts have taken a more restrictive approach. In the United Kingdom, the landscape is changing with a new two year pilot scheme, in force in certain UK courts from 1 January 2026, effecting a move toward far greater transparency. The pilot scheme may have implications for confidentiality, reputational and commercial risk, litigation strategy, and cross border evidence gathering. Similar conversations are underway in other European jurisdictions, but short-term change seems unlikely.
This alert will be of interest to US and other parties litigating or seeking evidence in the United Kingdom, France, Germany, and Italy.
United States: Open Justice and Presumption of Public Access
In the United States, the principle of open justice is deeply rooted in the court system, which presumes public access to court proceedings and documents. Most filings, such as party submissions and court orders, are available to the public by default, unless sealed (often only in part) to protect specific privacy, proprietary, national security, or other compelling confidentiality interests.
Electronic filing systems (like PACER for the federal court system) make it easy for the general public to access a wide range of court documents online. This openness enables journalists, businesses, and the public to review filings and follow cases. Such transparency and oversight aims to promote fairness and accountability in the legal system.
United Kingdom
Traditional Approach Under CPR 5.4
Generally, nonparties to proceedings in England and Wales are only permitted to obtain limited categories of documents from court records, namely statements of case and public judgments or orders. Access to these documents only arises at certain stages in the court process, most commonly after the defendants have filed acknowledgments of service or defenses. Nonparties can only obtain access to other court documents if the court gives permission.
Changes Under CPR PD 51 ZH Pilot Scheme
Effective 1 January 2026, a two year pilot scheme provides nonparties with greater access to court documents in the United Kingdom. The pilot scheme applies in the English Commercial Court including the London Circuit Commercial Court and the Financial List. If the pilot scheme is successful, the intention is to extend it to other courts.
The scheme significantly expands the documents available to nonparties by requiring parties to file or re-file designated Public Domain Documents (PDDs) on the public facing side of the court's electronic CE-File website shortly after public hearings. The PDDs will then become readily available to nonparties via the CE-File website. There are exceptions, including for cases that are subject to confidentiality or anonymity orders and for litigants in person. The scheme does not apply to hearings that are conducted in private.
PDDs include: (i) skeleton arguments; (ii) written submissions; (iii) witness statements (excluding exhibits); (iv) expert reports (including all appendices and annexes); and (v) documents deemed, by the judge, to be critical to the understanding of the hearing. Skeleton arguments must be filed within two clear days of the start of the applicable hearing, and all other PDDs must be filed within 14 days after the document is used or referred to at a hearing, unless the court orders otherwise or the parties agree to earlier filing.
Parties and nonparties (named or referred to in a PDD or a document that is expected to become a PDD) can apply for a Filing Modification Order (FMO) to limit or prevent public disclosure. Publication is the default position and an FMO can be challenged by a nonparty.
This pilot scheme is expected to increase transparency and public scrutiny. Increased openness may heighten stakeholder, competitor, and media attention. This may allow parties to shape the public narrative but may increase reputational and commercial risk. With a wider potential audience, parties will need to anticipate public scrutiny of PDDs and adjust drafting and litigation strategy accordingly. Early confidentiality planning will be important.
US and other nonparties may be able to take advantage of the access to PDDs on a number of fronts, including, for example, as use as evidence, or to inform litigation strategy, in other cases. It remains to be seen whether this increased openness will push parties towards more generally confidential alternatives like mediation or arbitration.
France
France traditionally adopts a restrictive approach to public access in civil proceedings.
- Hearings are generally public and recording of court hearings (audiovisual or sound) may be authorized.
- By contrast, access to court files is strictly limited. Only parties—and in some instances, accredited journalists—may obtain documents.
- Nonparty access typically requires a specific, justified request, and courts are cautious where personal data or commercial confidentiality is at stake.
- Judicial decisions are subject to a separate transparency regime with the free electronic publication of decisions, subject to specific rules governing anonymization and public access.
Digital access remains limited compared to the United Kingdom and the United States. As France continues modernizing its civil justice system, there is growing discussion about increased transparency, but no equivalent pilot program currently exists.
Germany
Germany's civil justice system places strong emphasis on privacy and data protection and public access to documents remains narrow.
- Hearings are public, but court files are not.
- Nonparties rarely obtain access unless they demonstrate a legitimate interest—a test applied rigorously.
- Personal data, competition sensitive information, and corporate documents are strongly protected under national law and General Data Protection Regulation principles.
Reform discussions continue, but significant change in the short term is unlikely.
Italy
Italian civil courts provide limited public access.
- Proceedings are public in principle, but documents filed in the case are not accessible to the public. However, copies of judicial decisions can be released to anyone who requests them. In addition, since late 2023, the Italian Ministry of Justice has made a publicly accessible database available online, allowing registered users to consult civil court decisions issued from 1 January 2016 onwards. The personal data of the parties are pseudonymized to ensure data protection.
- Nonparty access is allowed only upon a showing of a legitimate interest justifying a third-party intervention in the proceedings, or pursuant to a disclosure order issued by another judicial authority.
- Confidentiality concerns often override broader transparency arguments.
While digitization of court records has been completed and civil case files are now fully electronic, Italy remains among the more restrictive jurisdictions regarding non party access, particularly when compared to common law jurisdictions.
Key Takeaways
The UK pilot scheme represents a significant shift toward transparency, bringing certain English courts closer to US presumption of public access.
Key jurisdictions in Continental Europe remain far more restrictive.
Cross border litigation strategies—especially involving US parties—may need to be revisited in light of Europe's evolving transparency landscape.
The firm's Litigation and Dispute Resolution lawyers regularly help clients proactively manage risk and navigate complex, cross-border and other disputes. Whichever side of a dispute you might find yourself on, be sure to call the authors listed above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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