Briefing

Public domain documents pilot: What insurers need to know

Public transparency in relation to commercial litigation has shifted significantly with the launch of the new Public Domain Documents Pilot (the Pilot) on 1 January 2026.¹ The Pilot will run until 31 December 2027 across the Commercial Court, London Circuit Commercial Court, and the Financial List.²

The Pilot’s purpose is straightforward: to widen public access to key court documents and promote open justice, following concerns highlighted by the Supreme Court in Cape Intermediate Holdings Ltd v Dring.³

For insurers, particularly in certain business lines such as professional indemnity, the Pilot will be of interest, and in some cases it will potentially be relevant to strategy.

What the Pilot Changes

The Pilot does not rewrite the Civil Procedure Rules. CPR 5.4B/C (access to the court file) and CPR 39.2 (confidentiality and anonymity) remain unchanged unless the court orders otherwise. In other words, the intention of the pilot is not to broaden the category of publicly available documents. Instead, the pilot makes it significantly easier to identify and obtain a wider number of documents which as a matter of law have become public, as they are listed publicly on CE file, the court’s electronic filing system. It will be possible for members of the public to view all available public documents in the categories below online (as well as statements of case and orders), and to request them via that system for payment of a small fee.

Documents that will now enter the public domain on CE file

Under the Pilot, the following documents will become publicly accessible on CE file:

Written submissions (including skeleton arguments) which have been relied on at a public hearing;
Witness statements and affidavits (not including documents) that have been used or referred to at a public hearing;
Expert reports, including annexes and appendices that have been used or referred to at a public hearing;
Other documents designated by the judge⁴ and
Documents the parties agree should be public.⁵

The fourth category above is intended to allow the judge to order particularly important documents be made public where it would be artificial not to regard a document as public. An example is given in the guidance of a contract which is at the centre of an argument about construction of a term, in the context of other multiple terms in the same contract.

How the filing process works

Parties must re file public domain documents on CE File under a new ‘public view’ category within a specified filing period after the document has been referred to or relied on.

If a party believes a document should not be made public, they may apply at the relevant hearing for a Filing Modification Order (FMO). Non-parties may challenge an FMO by making an application under CPR Part 23 on notice to all parties.

The grounds for obtaining an FMO are relatively vague: the guidance note to the Pilot sets out that parties can explain their concerns to the judge hearing the trial or application, and the judge can rule for filing with redactions or no filing pending any third party application, when the question of balance between public access and protected interest can be weighed and any costs implications (such as the cost of redactions) can be grappled with.

Implications for Insurers

Increased visibility of information on disputes

The most immediate consequence is that easier access may mean significantly more information about commercial disputes will be accessed by third parties. Consequently, there is a risk of greater exposure of sensitive material. This material might be obtained, for example, by the press, by competitors, or by third parties considering claims following on from the original proceedings. In insurance coverage disputes, this might involve more details, for example, relating to underwriting decisions or claims handling becoming available, depending on the nature of the dispute. Where the insurer’s interest is in relation to the defence of a third party claim against an insured, it is likely the insured will have greater concern about its information coming into the public domain.

However, public access to these documents does of course cut both ways, and insurers may benefit from the same easier access to detailed submissions and evidence in other parties’ disputes, e.g. in relation to a dispute common across the market.

Strategic pressure toward arbitration and other private forums

Another potential consequence of the Pilot is even greater interest in arbitration. More parties who previously saw minor risk in litigating may now feel the balance has tipped in favour of the privacy of arbitral proceedings, or other alternative dispute resolution procedures. This will need to be considered when drafting dispute resolution clauses.

Document preparation and case management

Knowing that documents might become public might change how certain aspects of litigation are approached. When drafting and reviewing certain documents, parties and their representatives will need to keep in mind from an early stage the fact that they might become public, and whether for example, particularly sensitive information really does need to be included, or perhaps considering how documents are structured and where that information is placed. Representatives will need to consider whether FMOs need to be sought – but the threshold for obtaining one will be high.

Although the process for obtaining an FMO is intended to be relatively informal, it can be seen that in high value complex and sensitive cases there is the potential for significant time and cost to be incurred in relation to arguments relating to FMOs, as well as to whether the judge should exercise its power under PD51ZH.8(g) to order additional documents are made public.

Looking Ahead

The impact of the Pilot will become clearer as cases progress through the system. A six-month review has been put in place, which will help assess whether the process is having its intended effect.

Footnotes