The Commercial Court goes public: Transparency Pilot – what litigants need to know

Open justice is a long-standing common-law principle in the courts of England and Wales, but in modern civil litigation practice much of the evidence is exchanged in writing and read by the judge in advance. This means that observers in the public gallery receive only a partial picture of the material that shapes a judgment.

The Commercial Court will shortly test a new approach to open justice. A six-month Pilot Practice Direction, expected to take effect in the new year, will require a core set of documents deployed in open court to be placed automatically on a publicly accessible section of the electronic court file (CE-File). The reform is the most significant step yet in implementing the Supreme Court’s guidance in Dring v Cape on the public’s right to see the material used by judges when deciding civil disputes.

Below we set out the headline changes, the legal and commercial ramifications, and the practical points for parties planning (or already engaged in) litigation in the Commercial Court.

Key updates

• Automatic publication of key documents: Skeleton arguments, written openings and closings, witness statements, expert reports and, critically, any document the judge considers “critical to understanding the case” will be uploaded to the new public side of CE-File once they are referred to in an open hearing. No application from the press or public will be required, in contrast to the current procedure.
   
• Filing Modification Orders (FMOs): Parties may seek redactions or the complete withholding of a document where confidentiality is genuinely required using Filing Modification Orders.   The starting point is full disclosure; judges are expected to be slow to grant extensive carve-outs for material already ventilated in court.
   
• Scope of the Pilot: The Pilot applies only to proceedings conducted on CE-File in the Commercial Court. Cases involving litigants in person who do not use the system remain outside scope for now.
   
• Duration and review: The Pilot will run for an initial six months. Data gathered over that period will inform whether the regime becomes permanent and whether it is rolled out to other civil jurisdictions.

Rationale

The Pilot follows the ruling made by the Supreme Court in Dring v Cape (along with the subsequent High Court ruling), in which the Court confirmed that the public presumptively enjoys access to documents placed before the court and referred to by the parties, unless some countervailing interest justifies restriction. Translating that principle into day-to-day procedure has proven difficult, not least because CPR 5.4C (non-party access) operates on an application-by-application basis.

Legal and Commercial Implications

The default public availability of documents naturally has some wider implications:

• The new transparency regime may make arbitration and mediation (which are both typically confidential) more attractive for parties prioritising privacy. Equally, claimants seeking public leverage may favour the Commercial Court precisely because of the publicity that the Pilot will generate.
   
• Practitioners may be more inclined to consider how the public interprets courts documents when drafting, given the risk of reputational and commercial exposure. This may impact the tone, level of detail and the handling of confidential data in court documents.
   
• Documents captured by the Pilot will be in the public domain and therefore free of the usual CPR 31.22 restriction on collateral use of disclosure.   Overseas litigants may seek to download English court materials for use in foreign proceedings. Parties should factor that possibility into their overall disclosure and settlement strategies.
   
• A push for openness inevitably will lead to a rise in applications for confidentiality; while FMOs are designed to be quick, parties should expect contested debates where one side insists on openness and the other seeks to shield information.

Practical Steps

Going forward, parties engaged in (or due to be engaged in) proceedings in the Commercial Court should be careful to identify commercially sensitive material at the outset and consider how best to limit its appearance in open documents. Where possible, confidential details should be placed in exhibits that can be redacted while leaving narrative text intact. The Pilot may also apply retrospectively, and as such, historic filings should also be reviewed to consider whether any legacy material could become public. To the extent that any potentially damaging material is made public, parties should coordinate their legal and media strategies ahead of time.

Looking Ahead

The Transparency Pilot seeks to align the civil justice system more closely with twenty-first-century expectations of openness. If successful, similar measures may follow in other specialist more broadly. For now, parties with existing or contemplated claims in the Commercial Court should move quickly to assess their confidentiality risk and adapt their litigation strategy to the new default of public disclosure.