The latest Forensic News from Milsted Langdon

 

The judiciary has introduced Practice Direction 51 ZH (PD 51 ZH), launching a two-year pilot scheme in the Commercial Courts. This initiative marks a significant departure from traditional practice and is likely to have far-reaching implications for litigation strategy, confidentiality, and the instruction of expert witnesses.

PD 51 ZH is designed to enhance transparency in the Commercial Courts by granting non-parties access to key court documents – including expert reports – without requiring court permission. Historically, such access was tightly controlled, often necessitating formal applications and judicial discretion. This pilot removes that barrier.

Non-parties, such as regulators, academics, and even competitors, can now scrutinise expert evidence. This could be significant because it is not unusual for expert reports to contain sensitive commercial information. If litigants want to avoid this being exposed to an unlimited audience, it will be necessary for instructing solicitors to take proactive measures which might well include:

  • Advising clients at the outset of a dispute about the risks associated with the new transparency rules and considering alternative private proceedings such as arbitration;

  • Including a provision within the terms of the expert’s instructions that require the expert to redact or anonymise any information that the litigants do not want to be exposed to public scrutiny;

  • Requiring the expert to provide a draft report to the instructing solicitors that can be reviewed to ensure that it includes only information that can be made public without adverse consequences; and

  • Considering whether there are grounds for applying for a Filing Modification Order (FMO).

An FMO can allow for the redaction of sensitive content, the withholding of a document entirely or delayed filing beyond the standard deadline. Courts are only likely to grant an FMO for strong and specific reasons, given the overriding principle of open justice. Such grounds might include the need to avoid disclosing sensitive financial details that could cause harm if disclosed or addresses or contact details that could compromise safety or privacy of individuals

PD 51 ZH represents a fundamental shift towards transparency in the Commercial Courts. For solicitors, this means adopting a proactive approach when instructing experts: anticipate confidentiality risks, review draft reports thoroughly, and be prepared to apply for an FMO where justified. Early engagement and clear communication with experts and clients will be critical to safeguarding sensitive information while complying with the new regime.

If you would like to discuss this topic further or find out how Milsted Langdon’s forensic team can support your case, please get in touch with us.

 
Amina Mufti