Lizzie Whelan
- Solicitor
- Commercial Disputes
New year, new risks: navigating transparency in the Commercial Court
Transparency is the watchword for 2026 – but what does it mean for private clients?
As the year begins, many private clients are reviewing their affairs and setting resolutions. One area that demands particular attention is dispute management. How disputes are resolved can have lasting consequences, especially now that the English courts are embracing greater transparency.
Confidentiality is often a key determinant in disputes involving recognised individuals. As a result, confidentiality has long been a hallmark of arbitration’s appeal, particularly in England and Wales, where private arbitration proceedings have kept sensitive matters out of the public domain. However, that dynamic is shifting: a new pilot scheme in the Commercial Court will significantly expand public (and therefore press) access to court documents, sharpening the contrast between arbitration and litigation and requiring parties to be more strategic than ever when resolving disputes.
What is changing?
From 1 January 2026, a two -year pilot scheme will require key documents – including statements of case, skeleton arguments, witness statements, expert reports, and opening/closing submissions – to be re-filed under a new ‘Public Domain Documents’ category on CE-file, the Commercial Court’s electronic filing system. These documents will be automatically accessible to non-parties, including journalists and competitors, unless a specific exemption or redaction is granted. Failure to comply may result in court orders or even contempt proceedings.
The scheme applies to hearings and trials in the Commercial Court, the London Circuit Commercial Court and the Financial List, but not (for now) to other Business and Property Courts or to proceedings subject to confidentiality or anonymisation orders.
Importantly, the scheme does not throw confidentiality into the wind. Parties can request a Filing Modification Order to withhold or redact specific documents/information from the public file. No formal application is required, but judges will only grant such an order where secrecy is essential. It is expected that those exemptions will not be applied widely.
Why does this matter?
Historically, commercial litigation offered a degree of privacy simply due to the difficulty in publicly accessing court documents. This marks a major shift. With automatic online availability, media outlets and competitors can obtain court documents without attending hearings or chasing lawyers for copies and can obtain a wider range of the court filed documents. The result? Increased press coverage and heightened reputational risk, but also the opportunity for strategic leverage.
The implications for clients are clear:
- Heightened publicity risks: Sensitive details, such as financial arrangements, investment structures, or family matters, may now be accessible to journalists, competitors, and other third parties. This increases the likelihood of press coverage and scrutiny, which can affect both personal and commercial reputation.
- Court of public opinion: Conversely, claimants in particular, and those with fewer resources may view greater visibility as an opportunity. Public access to case details can help spotlight the conduct of a more powerful or public counterparty, strengthen their negotiating position, and even apply pressure to secure a favourable settlement.
- Expanded disclosure and costs risks: The scope of documents to be filed publicly is extensive. Dispute may arise over what constitutes a ‘Public Domain Document’, leading to satellite litigation and additional costs for clients. Parties should anticipate these debates early and budget accordingly.
- Attractiveness of arbitration and mediation: Both remain confidential by default, offering greater control over the flow of information. For clients prioritising discretion, these options may become even more attractive.
- Litigation strategy must evolve: Where litigation is unavoidable, parties must adopt a proactive approach. This could include limiting sensitive content in pleadings and submissions, considering placing confidential details in exhibits that can be redacted, preparing for potential media interest and reputational management, and resolving disputes before public filing obligations arise. As a claimant, where possible, issuing a claim in the Commercial Court (as opposed to other High Courts divisions) may give strategic advantage and potential leverage.
Practical steps for 2026
To mitigate risk and maintain control, clients should act now and:
- Audit dispute resolution clauses: Review contracts and trust deeds and consider incorporating arbitration or ADR provisions where privacy is critical.
- Plan forum and timing: Explore alternative forums that can be agreed between the parties, such as arbitration, or considering early settlement to avoid disclosure.
- Identify sensitive material early: Flag sensitive details at the outset, use redaction mechanisms where possible, and request Filing Modification Orders where appropriate.
- Consider court selection: Where appropriate, issue proceedings in non-pilot scheme courts to retain privacy or deliberately issue proceedings in the Commercial Court for strategic reasons.
As the courts move towards greater transparency, those who value discretion should take early and deliberate steps to adjust to these changes. The message for 2026 is clear: arbitration and ADR offer a higher degree of confidentiality, but with the right advice and planning, litigation remains a powerful tool and indeed, can be an opportunity.
How we can help
Our experienced Commercial Disputes team can help you navigate the forthcoming changes and advise on strategic use of these changes – which can also be used in conjunction with crisis communication experts. For further information or advice, please contact a member of our Commercial Dispute team or your usual Wedlake Bell adviser.
This article is for general information purposes only and does not constitute legal advice or a comprehensive statement of the law. Specific legal advice should always be sought in relation to individual circumstances.
Meet the team:
Edward Starling
- Partner
- Commercial Disputes
