As from 1st January 2026 a two-year pilot scheme will extend the range of Public Domain Documents (PDDs) in the Commercial Court and London Circuit Commercial Court of the King’s Bench Division, and the Financial List (Commercial Court and Chancery Division) (the Pilot Courts). It is anticipated that when the scheme is reviewed in mid-2026, it will likely be extended to other Business & Property Courts. The scheme’s existence now poses a very significant concern for commercial litigants as there will now be additional risks of media and competitor access to commercially sensitive information in court proceedings. This risk is in direct contrast to the benefit of the confidential nature of commercial mediation as an ADR process where negotiated settlements are concluded discretely behind closed private doors away from public gaze and scrutiny.
The pilot scheme is aimed to improve transparency and public confidence in the judicial system. It extends public access beyond the currently available orders, statements of case and judgements which are accessible for a small charge. As from this week more sensitive documents such as witness statements, written submissions and expert reports as well as other documents deemed PDDs at interim and final hearings can be accessed by the public. To avoid public disclosure, parties will have to apply for a ‘Filing Modification Order’ and such applications can be challenged by non-parties.
The pilot scheme provides another disincentive for those considering litigation over mediation and other ADR. This shift in the court landscape follows the promotion of ADR in the October 2024 changes in the Civil Procedure Rules which incentivizes ADR by increasing the risk of cost consequences if ADR is not actively engaged in by disputants. The pilot scheme creates real commercial risks in engaging in court proceedings. This is in contrast to mediation which has an 80% success rate nationally and already provides disputants with a swift, cost-effective forum in which they can exercise not only agency over outcome, unlike the courts, but also ensures sensitive commercial information never reaches the public domain. Even hardened and entrenched old school litigation lawyers, often the only winners in court cases, will have to join their more enlightened and sophisticated counterparts and now proactively advise their clients that the risks of litigation are increasing to such an extent that going to court makes very little commercial sense for most commercial disputes.
