What appears to be the first judgment on Practice Direction 51ZH (PD 51ZH) has now been handed down and, unsurprisingly, it arises in a context where the new open justice pilot was always likely to create practical difficulties: a major securities claim running alongside related criminal proceedings. In this article, we examine the recent ruling in the case of Various Claimants v Entain Plc [2026] EWHC 1511 (Comm) (Entain).
The risk of prejudice to criminal proceedings from information being disclosed in related civil securities claims is not new. Courts have long had tools to manage that risk, including reporting restrictions, confidentiality arrangements and case management orders. The two-year pilot scheme under Practice Direction 51ZH (PD51ZH), however, adds a new dimension. In the Commercial Court and Financial List, non-parties now have a default right of access to a wider category of documents used or referred to at, or critical to understanding, public hearings (identified as “Public Domain Documents” in the PD 51ZH). That means the question is no longer how to manage what is said in open court, but also how to manage documents that may automatically become accessible as a result.
The Entain ruling
Mr Justice Trower’s ruling in Entain comes off the back of the first case management conference (CMC) in the Entain securities litigation. He was required to consider at the hearing how PD 51ZH should operate where civil claims under sections 90 and 90A of the Financial Services and Markets Act 2000 (FSMA) overlap with criminal proceedings arising out of some of the same alleged misconduct. The risk of prejudice is particularly acute given that a material part of the information relied on in the civil claims derives from Entain’s deferred prosecution agreement with the Crown Prosecution Service (CPS) and the associated statement of facts, in respect of which reporting and dissemination restrictions had already been imposed by the President of the King’s Bench Division (PKBD).
It was agreed between the parties attending the CMC that, to reduce the risk of prejudice, the trial should be listed after the conclusion of the trials in the criminal proceedings and that reporting restrictions under section 4(2) of the Contempt of Court Act 1981 would be necessary at some stage. The question with respect to the latter was timing. Mr Justice Trower ultimately decided to “grasp the nettle now” as not to do so would increase the risk of leakage for no good reason, and making the order at that stage was consistent with good case management. An interim reporting restriction order (RRO) was therefore made at the outset of the hearing, and a final RRO was subsequently made. Mr Justice Trower considered that this was supportive of, and consistent with, the relief already granted by the PKBD.
Mr Justice Trower nevertheless had to consider whether, in addition to the RRO, a filing modification order (FMO) should also be made, waiving or qualifying the requirement for the parties to file Public Domain Documents under PD 51ZH.
A central issue was how redaction could work in practice. Again, the parties attending the CMC accepted that a material amount of information would likely need to be redacted before any Public Domain Documents were filed. The question was who should be responsible for determining this and applying those redactions. Mr Justice Trower recognised that the civil parties were not parties to the criminal proceedings and were therefore not well placed to determine what redactions might be necessary. At the same time, he also recognised that it would not normally be the CPS’s role to act as gatekeeper for documents filed in related civil litigation. That difficulty will be familiar in cases involving parallel civil and criminal or regulatory processes. Redactions can be costly, time-consuming and contentious, particularly where the party best placed to identify potential prejudice is not the party responsible for filing the civil document.
The solution adopted by Mr Justice Trower was a placeholder mechanism. Rather than filing the documents themselves, parties must instead file a placeholder identifying the date and nature of the document, the hearing at which it was first used or referred to in public, and the party by whom it was filed. The placeholder must also draw attention to the right of any non-party to apply for access under PD 51ZH. If such an application is made, it must be notified to the CPS and the defendants in the criminal proceedings so that they can input on the substance of the application and any discussions on redactions.
In his judgment, Mr Justice Trower explains that he is satisfied that an FMO in this form, taken together with the RRO and the listing of the civil trial after the criminal proceedings, struck the right balance between maintaining open justice and minimising the risk of prejudicial information leaking into the public domain.
Comment
The decision is an important early indication that, while open justice remains the starting point, the court will be prepared to modify the new access regime to protect the fairness of related criminal proceedings. It also shows that redaction is not merely an administrative exercise and that identifying who is best placed to assess prejudice may itself become a significant case management issue.
It is also significant for securities litigation, as there is regularly an overlap between civil and criminal proceedings. Where part of the purpose of the investor protection regime under sections 90 and 90A of FSMA is to ensure good corporate governance, open justice is an important factor in holding listed companies to account in the face of public scrutiny.
