Commercial Court Pilot Scheme: Transparency and ADR Impact

The English Commercial Court has long been a forum of choice for high value, complex disputes. It has a well-regarded reputation for judicial expertise and international credibility is well established. However, court proceedings within this court are becoming more transparent, and more public than ever before.

A new pilot scheme expanding public access to court documents marks a significant shift in transparency. While the initiative aims to enhance open justice, it may also have an unintended consequence: pushing more parties away from the courts and into private forms of alternative dispute resolution (ADR).

This article explores what the pilot scheme does, why it matters, and how it may influence the strategy of commercial litigants.

The new pilot scheme: what’s changing

Historically, public access to court documents in England and Wales has been limited. Under Civil Procedure Rule 5.4C, non‑parties can request certain documents, typically statements of case and judgments, but access to witness statements, skeleton arguments, and other materials has been more restricted.

The Commercial Court’s new pilot scheme (expected to run for two years, until December 2027) expands this access in the following ways:

Key features of the pilot

• Broader categories of documents available: Non‑parties may obtain skeleton arguments, written submissions, and certain witness statements once they are “used” in court.
• Streamlined application process: Requests can be made more easily and, in some cases, without the need for a formal application hearing.
• Digital access: Documents may be provided electronically, reducing friction and increasing the likelihood of public engagement.
• Judicial discretion preserved: Judges retain the ability to restrict access where necessary to protect confidentiality, national security, or the administration of justice.

The scheme aligns with a broader judicial trend toward transparency, reflecting the principle that justice should not only be done but be seen to be done.

Why transparency matters and why it worries litigants

For the public, journalists, academics, and legal commentators, the pilot scheme is a welcome development. It enhances scrutiny, supports legal reporting, and strengthens confidence in the justice system.

For commercial parties, however, the picture is more complicated.

Commercial sensitivities at stake

• Confidential business information: Even if redactions are possible, the risk of inadvertent disclosure increases.
• Reputational exposure: High profile disputes can attract unwanted media attention.
• Strategic disadvantage: Competitors may gain insights into business practices, negotiation strategies, or internal decision making.
• Litigation as leverage: The threat of public proceedings can be used tactically  and the new scheme may amplify that dynamic.

In sectors where confidentiality is paramount the prospect of greater public access may be a decisive factor in avoiding court altogether.

The likely impact: a push toward private ADR

The Commercial Court has always coexisted with private dispute resolution mechanisms, including arbitration, mediation, and expert determination. The new pilot scheme may accelerate a shift to ADR that was already underway.

Why ADR becomes more attractive

• Confidentiality: Arbitration and mediation remain private by default.
• Control: Parties can shape the procedure, timetable, and selection of decision makers.
• Reputational protection: Sensitive disputes can be resolved without public scrutiny.
• Cost and efficiency: ADR tends to be cheaper and can avoid the procedural complexity of court litigation.

Will this reduce court workload or change its nature?

The Commercial Court may see fewer cases, but those that remain are likely to be:

• More complex
• More contentious
• More strategically significant

In other words, the court may become a forum for disputes where public scrutiny is either unavoidable or strategically useful.

Meanwhile, ADR providers may see increased demand from parties seeking confidentiality and procedural flexibility.

Practical considerations for businesses

• Review dispute resolution clauses in commercial contracts.
• Consider whether arbitration or expert determination should be the default mechanism.
• Assess the reputational and competitive risks of public litigation.

Conclusion: a more transparent court and a more private future

The Commercial Court’s pilot scheme represents a meaningful step toward greater transparency in the justice system. Yet transparency comes with trade-offs. For many commercial parties, the increased risk of public exposure may tip the balance in favour of private ADR.

In the long run, the scheme may reshape the dispute resolution landscape: a more open court system on one side, and a growing preference for confidential, bespoke, and flexible ADR processes on the other.

The Commercial Court is opening its doors wider, but many litigants may decide they prefer to stay outside.

Contact Us

If you would like to discuss how the Commercial Court’s new pilot scheme may affect your business, or review your dispute resolution strategy in light of increased transparency, please get in touch with Ellie Claffey at eclaffey@prettys.co.uk

You can view our dispute resolution service here