At the end of last year, I wrote a post on the introduction of Practice Direction 51ZH (“the PD”), which enables non-parties to access certain documents used or referred to at public hearings in the Commercial Court, the London Circuit Commercial Court and the Financial List. The PD provides a mechanism whereby the court may make a Filing Modification Order (“FMO”) qualifying or waiving the parties’ duty to file such documents on the public access CE-File (the “Filing Requirement”). In what appears to be the first judgment addressing the court’s approach to that power, Mr Justice Trower granted an FMO in Various Claimants v Entain PLC [2026] EWHC 1511 (Comm) , waiving the Filing Requirement but requiring the parties to place a placeholder on the public access CE-File.
Relevant background
Various groups of shareholders have brought claims against Entain Plc under ss.90 and 90A of the Financial Services and Markets Act 2000 (“the Act”). They allege that Entain engaged in historic misconduct in respect of its business in Turkey, involving a failure to prevent the payment of bribes. The claimants say that this was done with the knowledge of a number of persons discharging managerial responsibilities (“PDMRs”). A number of those PDMRs have also been charged with criminal offences said to arise in connection with some of the same alleged misconduct.
The application
The CPS applied for an FMO under paragraph 13(b) of the PD to waive the Filing Requirement because it was concerned that the fairness of the criminal proceedings should not be jeopardised by steps taken in the civil proceedings. The parties to the criminal proceedings agreed that there was a material risk that public disclosure of information contained in unredacted versions of the documents that would otherwise be filed might compromise the fair conduct of those proceedings.
The judgment
Mr Justice Trower held that, although the PD changes the starting point for access to documents in the relevant courts, the court’s discretion to make an FMO must still be exercised by reference to the principles underlying open justice, including those explained in Dring v Cape Intermediate [2020] AC 629.
Trower J’s starting point was that, in the courts to which the PD applies, the Civil Procedure Rules now treat access to a wider range of documents without a court order as an appropriate means of advancing the open justice principle. The court must then balance the value of the information in advancing open justice against, among 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. Trower J held that, where third-party access under the PD would increase the risk of prejudicial information leaking into the public domain and thereby affecting the fairness of related criminal proceedings, that factor should weigh heavily in favour of a suitably tailored FMO.
Trower J then considered how the competing principles could best be reconciled. Although redaction was one possible mechanism, all parties accepted that a material amount of information was likely to require redaction. The difficulty was that the civil parties were not parties to the criminal proceedings and were therefore not well placed to decide what redactions were necessary; equally, it would not ordinarily be the CPS’s role to act as gatekeeper for documents made publicly available in associated civil proceedings. Trower J therefore ordered the parties to include a placeholder on the public access CE-File, which had to: (a) identify the date and nature of the document; (b) state the date and nature of the hearing at which it was first used or referred to in public; (c) identify the party by whom it was filed; and (d) draw specific attention to the right of any non-party to apply under paragraph 19 of the PD for access to the document.
Practical takeaway
The primary practical consideration arising from this judgment is one of cost. When parallel criminal proceedings are ongoing, civil litigators must always exercise judgement as to how quickly to seek to press on and what safeguards may be necessary. The process set down by Trower J will be cost intensive – far more cost intensive than simply uploading documents to CE-File. Those representing the claimants will therefore need to factor the costs of this process into the likely overall cost (and countervailing benefit) of any interim applications they wish to make, and the timing of any interim hearings.
