Litigation transparency in 2026: Navigating the new era of public access to court documents

From January 2026, a two-year pilot scheme established by Practice Direction 51ZH (Access to Public Domain Documents) is being rolled out in the Commercial Court, the London Circuit Commercial Court and the Financial List. The scheme aims to expand public access to documents in the courts and marks a significant change in how commercial disputes will be conducted and perceived.

What’s changing?

The scheme builds on the principles confirmed by the Supreme Court in Cape Intermediate Holdings v Dring [2019] UKSC 38, which held that non-parties may access court documents where this advances the principle of open justice.

Under this new scheme, documents used or referred to in public hearings (both existing and new) must be filed in the new public section of the court’s CE‑File system. Third parties such as journalists, competitors and campaign groups will have a more straightforward route to requesting access to a broader range of documents, including:

• Statements of case
• Witness statements and expert reports relied upon at hearings
• Skeleton arguments and written submissions

Previously, access to these documents by third parties required a formal non‑party access application and court permission to access. Now, the documents become publicly available by default (unless there is a compelling reason not to) and third parties can request documents through CE-File.

Why this matters:

The implications for parties involved in commercially sensitive or highly regulated sectors are significant.

• Litigation risk now extends beyond the courtroom: Allegations, evidence and commercial narratives may enter the public domain at an earlier stage increasing the risk of wider scrutiny by competitors, investors, regulators and the media, and means that reputational, confidentiality and data-protection considerations must be factored into litigation strategy from an early stage.
• Open justice strategy considerations: Parties will need to be more deliberate in how evidence and submissions are prepared, identify sensitive material early, and consider whether applications to restrict access or require redactions are necessary.

The pilot scheme emphasises the need for a joined‑up litigation strategy, aligning legal, commercial and communications planning in a far more transparent court environment. It is worth stress-testing existing and new disputes by asking the following question – if pleadings or evidence were publicly accessible, would the business be comfortable with its current approach?

Confidentiality is not dead — but it must be actively managed

The courts remain mindful of genuine concerns of keeping certain information confidential. Redactions and confidentiality orders will continue to play an important role and remain available. Parties may seek Filling Modification Orders (FMOs) to prevent sensitive information entering the public domain. Once a FMO request is made, the filing period is suspended until the court determines the application. The court may also impose an FMO on its own initiative where appropriate.

However, the default position is that any documents referred to during an open court hearing will automatically become public.

Strategic implications for dispute resolution

As litigation becomes more public, parties with confidentiality concerns may look to alternative avenues of dispute, including other court divisions or jurisdiction, mediation and arbitration at an early stage. This shift also underscores the need for greater discipline in written advocacy and document drafting, with tighter control over sensitive material and clearer structuring to facilitate targeted redaction where needed.

At the same time, the prospect of public scrutiny may drive earlier settlement discussions. When pleadings and witness evidence are at risk of becoming public, the commercial and reputational cost of prolonged litigation may outweigh the benefits of pursuing a matter to trial. As a result, decisions on timing, escalation and settlement can no longer be taken in isolation from reputational considerations.

How can we help?

For further help and advice on resolving your disputes contact our dispute resolution team who will be able to provide advice and assistance as necessary.