A View From The Exchange: The Court Considers Filing Modification Orders Under the Access to Public Domain Documents Pilot
In January's A View From The Exchange we discussed the introduction of CPR Practice Direction 51ZH; a pilot scheme that came into force on 1 January 2026 making it easier for members of the public to obtain access to certain documents filed in specified courts. Six months on, the Commercial Court handed down the first judgment considering when and how it should restrict that access by making a Filing Modification Order (FMO) in Various Claimants v Entain Plc [2026] EWHC 1511 (Comm).
The case
The proceedings concerned linked shareholder claims brought against Entain Plc. The shareholders alleged that Entain published information to the market which failed to disclose historic misconduct involving failure to prevent the payment of bribes in connection with its Turkish operations. Certain individuals named in the pleadings had also been charged with criminal offences arising from the same alleged misconduct, with criminal trials listed between February 2028 and March 2029.
To ensure that the fairness of the criminal trials was not jeopardised by the ongoing civil proceedings, the Crown Prosecution Service applied for an FMO to waive the requirement to publicly file documents in accordance with PD 51ZH. All parties represented in court agreed that there was significant overlap between the issues in both sets of proceedings, and a material risk that unrestricted public access to unredacted documents could compromise the fairness of the criminal trials.
The Court’s approach to FMOs
Mr Justice Trower noted that PD 51ZH is drafted in broad terms and does not identify the factors the court must take into account when deciding whether to make an FMO. He held that when deciding whether to grant an FMO, the underlying principles to be relied on are those explained in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38, adapted to reflect PD 51ZH's procedures.
The key principles include:
- PD 51ZH treats access to a wider range of documents without a court order as an appropriate means of advancing open justice in the courts operating under the pilot.
- The court must weigh the public interest in transparency against the potential harm that unrestricted disclosure could cause.
- Those with a legitimate interest in restricting access are entitled to have their concerns taken seriously.
- Where public access creates a real risk of prejudicial material reaching potential jurors or otherwise compromising criminal proceedings, that risk will carry significant weight in favour of granting an FMO.
- The pilot is only intended to capture documents that can be made available without placing an undue burden on the parties or the court.
The decision
All parties accepted that extensive redactions would be needed if documents were filed in accordance with the pilot. However, the civil parties were not parties to the criminal proceedings and were not well equipped to identify what redactions were necessary, nor is it part of the CPS’ role to act as gatekeeper for redactions in associated civil proceedings.
Mr Justice Trower concluded that the right balance would be struck by making an FMO waiving the filing requirement entirely, while requiring the parties to include a placeholder on the public side of CE-File. The placeholder 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, the filing party, and a notice drawing attention to non-parties' rights to apply to court for access.
The Court also directed that any non-party application for access must be notified to the CPS and the criminal defendants, and made a reporting restriction order preventing contemporaneous media reporting of the civil proceedings until the criminal trials have concluded.
Key takeaways
FMOs are the exception, not the rule: The default position under PD 51ZH is public access and parties must demonstrate a significant risk of prejudice to justify departing from it.
Parallel criminal proceedings are a strong basis for an FMO: Where civil and criminal proceedings arise from the same misconduct, parties should consider early engagement with the CPS and the criminal defendants regarding the management of public filings under the pilot.
The placeholder mechanism is a practical middle ground: A complete waiver of the filing requirement need not mean complete secrecy; the placeholder system preserves awareness of what documents exist while protecting their content, and maintains non-parties’ rights to apply for access with appropriate safeguards.
The redaction burden matters: Where extensive redactions would be needed and the parties are not well placed to make those judgments, a waiver of the filing requirement may be more proportionate than a complex redaction exercise.
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Other authors: Fraser Collingham, Senior Associate and Isabella Lynn, Trainee Solicitor.
