In this article, Head of Department Head of Litigation Daniel Crook of Kingsfords Solicitors Litigation and Disputes Team with local office in Ashford, Cranbrook and Hythe provides a timely precis on the new transparency pilot in the Commercial Court, effective January 2026. It covers what’s happening, why it matters, and the strategic & practical implications for clients and advisers.
Increased Transparency in Commercial Courts: What the New Pilot Means for Litigants and the Public
From 1 January 2026, a landmark two-year pilot scheme will make a broader range of court documents in the Commercial Court, London Circuit Commercial Court and Financial List publicly accessible by default. This initiative, introduced through a Practice Direction (“Access to Public Domain Documents”), represents one of the most significant steps towards open justice in English civil litigation for decades. While the general principle that justice should be open and accessible has long been entrenched in our legal system, the practical reality has been that key documents underpinning litigation often remained opaque to all but the parties and their advisers. The new pilot aims to change that.
This article explains the mechanics of the pilot scheme, its strategic importance, and the practical considerations that commercial litigators and their clients should take on board as we approach its commencement.
Why the Pilot Is Being Introduced
Open justice — the idea that justice should not only be done but be seen to be done — is a major principle of the UK legal system. Yet, in practice, access to many core litigation documents in civil cases has been limited. Outside of judgments, orders, and statements of case, non-parties often had to apply to the court and justify why they should be allowed to see documents such as witness evidence or expert reports. A key decision emphasising this tension in 2019 confirmed that non-parties could sometimes apply for access — but it is not a straight forward process and is subject to judicial discretion in each case.
The new pilot is designed to address this access gap. It aims to create a more predictable and transparent process whereby many of the documents that genuinely inform judicial decision-making — including written advocacy and evidence — are readily accessible to the public and media through the CE-File electronic filing system - without the need for applications to the court.
For government and the judiciary, the logic is straightforward: the extra transparency should help promote public confidence in the civil justice process and reduces barriers to understanding how complex cases are decided.
What Documents Are involved?
Under the pilot, once certain documents are used or referred to at an open hearing, they will be required to be re-filed on the public side of the CE-File system, so that anyone can access them online for a fairly nominal fee (of around £15). Those documents include:
- Skeleton arguments and other written submissions provided to the judge;
- Written opening and closing submissions;
- Witness statements and affidavits (excluding exhibits filed with them in most cases);
- Expert reports, including their appendices and any documents annexed;
- Any other documents deemed “critical to the understanding of the hearing” by the judge; and
- Documents agreed by the parties to be public domain documents.
Importantly, skeleton arguments must be uploaded within two days of the start of the hearing, and other documents (such as witness evidence and expert reports) within 14 days of having been used or referred to at the hearing.
These requirements apply not only to new cases but also existing, ongoing cases scheduled to have hearings in 2026 and 2027. (Confidential hearings, or anonymised cases where existing confidentiality or sealing orders already apply are not included).
Strategic Implications for Litigants and Advisers
1. Strategic Document Drafting
In future, commercial litigators will need to adopt a more public-facing mindset in drafting. In the past, skeleton arguments, witness statements and expert reports were created primarily for the judge and opposing counsel. With this information now likely to become public, the temptation to include forceful analysis and highlight the detailed facts of the case may, need to be tempered by consideration of how such content would be interpreted by the wider public once published.
For example:
- Expert Witnesses may be more cautious about the scale of technical detail they include, being aware that annexes and appendices will be publicly accessible.
- Witness statements should be reviewed with an eye to personal data protection and any unnecessary and unwitting inclusion of sensitive commercial information.
- Written advocacy may need to balance force with a recognition that clients and external readers will see arguments that go beyond the courtroom context.
Each of these considerations may introduce additional layers of preparation, redaction and strategic editing, involving corresponding cost and timing implications.
2. Confidentiality and Filing Modification Orders (FMOs)
The pilot contemplates the use of Filing Modification Orders (FMOs) to restrict public access to genuinely confidential information. Where commercially sensitive material or personal data risks harm if published, lawyers will need to identify and pursue FMOs early in the litigation process. Under the pilot, FMOs can be sought by parties or ordered by the court based on its own initiative.
Securing FMOs may not always be simple. Courts have emphasised the importance of maintaining open justice, and protective orders will likely be granted only where confidentiality concerns are genuine, proportionate, and clearly justified. These processes will require careful drafting and early engagement with the judge, increasing the importance of strategic case management conferences and pre-hearing planning.
3. Impact on Choice of Forum
For many commercial enterprises — particularly those in tech, life sciences, finance and other commercially sensitive sectors— the new transparency norms may prompt a re-evaluation of dispute resolution choices. Arbitration and other confidential forms of Dispute Resolution have traditionally been attractive because they afford greater control over publicity and disclosure. If core court documents are now routinely public, parties might prefer confidential arbitration type proceedings particularly when intellectual property, trade secrets or sensitive financial information are at stake.
Advisers should be prepared to discuss this with clients at the contract negotiation stage — including choice of law and dispute resolution clauses that anticipate different levels of public access to case materials.
4. Media and Third-Party Access
Greater access to this disclosed information will make it easier for journalists, industry analysts and competitors to understand high-profile commercial disputes. This will inevitably influence how disputes are reported and perceived outside the courtroom. This will involve reputational considerations for businesses involved in litigation — particularly when key evidence or contentious arguments enter the public domain.
Lawyers should consider the reputational risk and communications strategies that flow from publication of core litigation documents. Proactive external communications may be appropriate where sensitive cases are likely to attract attention, and legal advisers should collaborate closely with clients’ and any PR teams to manage the narrative, any brand impact and upon stakeholders.
Practical Steps for Preparation in 2026
As the pilot comes into force:
- Lawyers will have to familiarise themselves with Practice Direction 51ZH and the published guidance notes.
- Review and revise internal drafting protocols for skeletons, witness statements, expert reports and written submissions.
- Develop templates and redaction checklists to streamline preparation of documents destined for public access.
- Plan early for confidentiality concerns, including potential FMO applications where appropriate.
- Advise clients on choice of forum and dispute resolution strategy, taking into account the transparency pilot’s implications.
Conclusion
The January 2026 pilot to expand public access to key Court documents marks a momentous shift in the openness of civil litigation. By making skeleton arguments, witness evidence and expert reports more easily accessible, the courts are aligning with broader transparency trends seen internationally while reinforcing public confidence in the administration of justice.
This shift also presents real strategic and practical challenges. From drafting and confidentiality management to choice of forum and reputational risk, litigants and their advisers will need to adapt their approaches to litigation in an environment where core case materials are not only visible to the court and opposing counsel but to the world at large.
For businesses operating in Kent, London and beyond, understanding and planning for these changes now will be essential to safeguarding commercial interests and achieving favourable outcomes in the evolving landscape of public access to justice.
Contact Us
If you are a party involved in a Commercial Court dispute and wish to discuss any of the issues raised Daniel Crook of Kingsfords Solicitors Litigation and Disputes Team are on hand to support you. Please contact your local Kingsfords office in Ashford, Cranbrook or Hythe. Alternatively, you can send an enquiry and a member of our team will get back to you promptly, by calling us on 01233 665544, or emailing via dbc@kingsfords.net. We are happy to discuss initial matters without obligation.