If your business is ever involved in a commercial dispute, new rules mean that documents filed in your case could become publicly available - automatically, and without your consent.
A new transparency regime for court documents has come into force as a two-year pilot running during 2026/2027, applying to the Commercial Court and others. This will likely be expanded throughout the rest of the business and property courts in due course.
The change is significant. Previously, if a journalist, a competitor, or a member of the public wanted to see documents from your case, they had to apply to the Court and justify why they should have access. Now, the default position has been reversed. Certain documents must be made publicly available online once they have been used at a hearing.
This fundamental shift reflects concerns expressed in the Supreme Court (by Lady Hale in the case of Cape Intermediate Holdings Ltd v Dring [2019]) about public access to documents already in the public domain as a matter of law that were difficult to obtain in practice.
Which documents?
Essentially, documents referred to in a hearing must be filed online so that anyone can access them. These include skeleton arguments, written opening and closing submissions, witness statements and affidavits (but not their exhibits or annexes), expert reports including their annexes and appendices, and any other document critical to the understanding of the hearing. This is deliberately broad and could capture a wide range of commercially sensitive material.
The deadline for filing these documents is strict and enforcement is robust: if a party fails to file a document without first seeking protection, the Court may order them to do so, with non-compliance potentially giving rise to the contempt of court.
Why does this matter to businesses?
Commercial litigation involves sharing a great deal of sensitive information. Witness statements may describe your internal decision-making, pricing, or relationships with customers and suppliers. Expert reports may contain detailed financial analysis of your business. Under these new rules, all of that could become available to competitors, journalists, customers, or anyone else who wishes to look.
This is particularly relevant if your business operates in sectors where reputation and confidentiality matter - whether it's financial services, farming and agri-business, manufacturing, hospitality, property or professional services, all of which are significant parts of the UK national economy.
Can you protect sensitive information?
Potentially, yes, but you must act quickly and early. If you want to prevent a document from being made public, you must apply to the Court for a Filing Modification Order (FMO) before the deadline for filing the document has passed. If you miss that window, your position becomes significantly harder.
The Court can grant an FMO to block disclosure entirely, to allow only a redacted version to be filed, or to give more time. However, the bar is high. Simply saying a document is confidential is unlikely to be sufficient. Grounds for protection may include national security, the protection of interests of children or mentally disabled adults, privacy interests more generally, and the protection of trade secrets and commercial confidentiality. So, a high threshold and at this stage we do not yet know the extent to which the Court will be willing to make such orders. As a result, parties to litigation need to be aware of the high chance that their documents will be made public.
There are some practical steps worth taking now:
- Take advice at the outset. The implications of these rules should be discussed with your legal advisers before litigation begins - not after a hearing has already taken place.
- Review your contracts. Check the dispute resolution clauses in your key contracts. If confidentiality is important to your business, it may be worth considering whether arbitration or a different forum for dispute resolution would better protect your interests. You will need to carefully consider the advantages and disadvantages of different types of dispute resolution processes.
- Identify sensitive documents early. If you are already in litigation, work with your lawyers to flag commercially sensitive material as early as possible, so that any application for protection can be made in time.
- Do not assume confidentiality will be guaranteed. Even where protection is sought, there is no certainty it will be granted.
The direction of travel is clear: the Courts are moving towards greater openness. The businesses best place to manage this shift are those that plan for it early. Should you have any queries in relation to the matters discussed above, please do not hesitate to contact us and our Dispute Resolution team will be happy to advise.
