Transparency in the Commercial Court

Which documents will be made available to the public?

Certain documents, such as Claim Forms, Particulars of Claim, Judgments and Defences have been available for some time. Until now, obtaining other documents required a formal application to the court and a justification for the request. Under the Scheme, once a document has been referred to in a hearing that takes place in public, it will be made available on the public access part of the electronic court file unless an exemption or redaction is granted by the court. The public part of the electronic court file can be accessed by any member of the public and all documents must be requested through the online portal.

The main categories of documents covered by the Scheme are:

• Skeleton arguments (documents prepared by barristers before hearings to set out the client’s position and why they should prevail in the litigation).
• Opening and closing arguments (again, prepared by barristers).
• Other written submissions relied on during a hearing.
• Witness statements (excluding exhibits).
• Expert reports including annexes and exhibits.
• Any other documents which are considered by the judge to be critical to the understanding of the hearing.
• Any other documents agreed by the parties to be made available.

It is important to note that a party to a dispute that is not legally represented need not file these documents if they have not already been filed .

If a party wishes to restrict access to a public domain document, a request in writing must be made through what is known as a Filing Modification Order (“FMO”).

In Various Claimants v Entain Plc [2026] EWHC 1511 (Comm), the Commercial Court restricted public access to documents because disclosure could prejudice ongoing criminal proceedings. The decision demonstrates that the Scheme has built-in safeguards, allowing the court to adjust access when circumstances require.

Practical considerations for businesses

• Public interpretation: parties and their legal representatives must remember that certain documents may now reach a wider audience. They should consider how drafting of certain documents, including witness evidence and expert reports, may affect businesses commercially and reputationally.
• Publicity: since court documents can now be obtained without having to attend hearings or request copies, these may be used and leveraged by third parties, including the media, or even by parties involved in litigation. One party might, for example, push for an early and/or more advantageous settlement where it is aware the other party would prefer to avoid certain information entering the public domain.
• Confidentiality: the risk of confidential information being disclosed has increased. If documents containing information concerning, for example, business strategies and/or confidential commercial terms are made public, competitors could learn about and make use of insights which they would not otherwise have access to.
• Alternative Dispute Resolution (“ADR”) methods: where a settlement can be reached between parties in dispute, ADR is often a quicker alternative to litigation and can offer parties more control over their dispute. Negotiation and mediation are the most common types of ADR, and the use of these mechanisms may become even more prevalent to avoid ‘washing dirty linen in public’, whether that is before litigation has started or during its process. It is also worth noting that other dispute resolution processes, such as arbitration and expert determination, offer an alternative to court, producing binding decisions whilst maintaining confidentiality.
• Costs: the introduction of the Scheme places further burdens on litigating parties and will undoubtedly involve further time and cost in identifying and agreeing documents to be released into the public domain, again, potentially making litigation a less attractive option and other dispute resolution methods, especially those which preserve confidentiality, more appealing.

Practical steps

To reduce risk of exposure, businesses should: 

• Identify sensitive information: given that a wider range of company documents will now be made available to the public, it is important for businesses to review their confidential and sensitive information. This is important whether a dispute has arisen or not – after all, businesses seldom intend to find themselves involved in commercial disputes.
• Review your dispute resolution clauses: contracts, terms of business and other documents sometimes say too little or are vague about dispute resolution and, at times, do not consider alternatives to litigation at all. Clauses can be drafted requiring parties to engage in ADR and to use other dispute resolution methods, such as arbitration or expert determination, so preserving confidentiality.
• Develop your strategies: communication, PR and crisis management strategies should be developed and implemented, including seeking input from external advisors to ensure these strategies are as robust as possible.

If you need help determining the most effective approach to resolving your disputes, whether in or out of court, please contact our expert dispute resolution solicitors via our online enquiry form, or call +44(0)3333 231580.