Litigation in the spotlight: preparing for the Public Domain Documents Pilot

From 1 January 2026, commercial litigation in England & Wales will become more public than ever before. Under the new Public Domain Documents Pilot, court filings in the  Commercial Court and Financial List will be publicly accessible by default.

While media scrutiny of high-profile disputes is nothing new, the pilot will significantly increase the commercial and reputational risks associated with litigation given the heightened public visibility of a legal case. Extra consideration from General Counsels and communications teams will be required to ensure these risks are effectively managed. 

What’s changing and why does It matter?

The two-year pilot has been developed by a sub-group of the Civil Procedure Rules Committee, aiming to achieve broader legal transparency, and to ‘advance the principles of open justice.’

Legal documents in the Commercial Court and Financial List have always been available to interested non-parties, however this process previously required an application and a fee to cover the costs. The pilot will instead see documents become public by default, offering free and quicker access to key documents such as skeleton arguments, expert reports, and witness statements. Litigants will be able to apply for exceptions, known as ‘Filing Modification Orders’ (FMOs), although there is also provision for an FMO to be challenged by a non-party.

In practice, it means that journalists, competitors, and other interested parties will be able to access documents far more easily. Information that may have previously remained private, such as detailed witness evidence or commercially sensitive information, will be readily accessible. 

If successful, the pilot will be extended to further courts, including the Business and Property Courts, with a wider range of commercial disputes potentially also impacted by the change.

The need for a communications strategy

This change makes a joined-up communications and litigation strategy more important than ever. The removal of the requirement for permission to access potentially commercially sensitive court documents means that parties must be prepared for publicity on matters that may have otherwise not been scrutinised as part of litigation.

To manage this increased reputational risk, parties should consider:

• Anticipating at the drafting stage the wider audience that court filings may have.
• Developing a communications strategy that prepares for potential media scrutiny of particular documents and the proactive steps that can be taken to manage public sentiment in response.
• Align legal, investor relations, and communications teams early on in litigation process to ensure awareness of risks, consistency in messaging, and transparency.
• Consider steps that can be taken proactively to share and contextualise information that will become public through the course of litigation.
• Monitor media narratives and public sentiment, ready to efficiently and effectively respond to any reported misinformation or speculation during the litigation.

The pilot may also increase the attractiveness of alternative dispute resolution mechanisms, as well as earlier settlements of disputes without progressing to trial, to allow for greater control of information that enters the public domain thanks to confidential proceedings.  

Getting ahead

The introduction of the Public Domain Documents Pilot in January will mark a significant step towards far greater transparency in the justice system.

For communications teams and general counsels working to protect reputation in the midst of litigation and disputes preparedness, clear messaging, and collaboration with legal teams will be crucial for companies finding themselves needing to navigate this incoming change.

Litigation communications at FTI Consulting

Our specialist team helps companies prepare and manage communications plans to protect and manage a company’s reputation during any kind of litigation process. Our experts have been involved in high-profile cases before all major international courts and dispute-settlement bodies. Whether it is managing a reputation during a high profile case or working to generate interest to win over the Court of Public Opinion, a well thought out and well-executed communications plan can make all the difference.

The team comprises communications experts, former journalists and lawyers, and is instructed by both the lawyers representing companies or individuals, as well as the litigants themselves.

Our Services Include:

• Message Development
• Development of media strategy
• Development of supporting materials
• Media training
• Media relations
• Social media monitoring and engagement
• Courtroom monitoring
• Co-ordination of third party allies
• Public affairs and diplomatic advice
• Press office support

Find more information here.