Following our recent article on Artificial Intelligence (AI) and privilege (click here), developments in AI and litigation continue apace. The High Court recently issued a Practice Direction on the Responsible Use of Generative Artificial Intelligence in Court Documents (the Practice Direction). The aim of the Practice Direction is to set out the court's expectations in relation to the appropriate and responsible use of generative AI tools in legal proceedings and what this means for the future of practice and procedure in the High Court. The changes come into effect on 1 September next.
The key points to note are that the Practice Direction, whilst stopping short of mandating disclosure of AI use in all court documents, sets out specific requirements for different document types.
- Unless otherwise directed, litigants should declare in the opening paragraphs of a witness statement or affidavit whether AI was used to alter, embellish or rephrase their evidence and that the document reflects the witness's own personal knowledge and recollection of events.
- The use of AI for administrative reasons such as formatting or spell checking or other purposes unconnected with the substantive content of the document is permitted.
- A similar obligation will apply to those providing expert reports. They will have to reference the extent to which AI was used in preparing any report so that the court can assess the reliability and independence of the evidence. For pleadings all facts must be verified, claims must be based on proper legal principles and legal authorities checked to ensure they exist and support the proposition.
- For submissions all authorities, citations, quotations and references must be independently verified using authoritative resources.
- However, where directed by the court a party must disclose whether Gen AI tools were used and if so the nature and extent of that usage. All people are expected to be able to inform the court if requested.
The Practice Direction is measured in its approach to AI before the courts in general. It expressly recognises that Gen AI tools may improve the efficiency of litigation and enhance access to justice but it also identifies the risks associated with AI tools, such as inaccuracy, bias, factual errors, confidentiality, privacy and legal privilege issues. It states that court users are ultimately responsible for the content of their documents. It imposes an obligation on all users to verify that content produced by AI is current, complete, accurate and relevant. This verification must be carried out under human control and supervision. It is not enough to use the same or other GenAI tools to confirm accuracy. This means that solicitors must proof read and fact check submissions, edit and adapt the content to meet the particular circumstances of the case and also ensure that any references to case law, legislation exist and corroborate any arguments made.
The Practice Direction also underlines that solicitors remain subject to all professional and ethical obligations including obligations to act competently, diligently and independently and ensure the court is not misled. Solicitors are required to ensure that their clients are informed of and understand their duty to the court and that persons swearing affidavits or making witness statements understand their personal responsibility to confirm the truth and completeness of any such document and not to mislead the court.
Noncompliance with the Practice Direction will be sanctioned by the court. Sanctions include adverse cost orders, disregarding court documents or strike out of a claim or defence. Solicitors may also find themselves the subject of a referral to the Legal Services Regulatory Authority in circumstances where they fail to comply with the Practice Direction e.g. by citing non-existent resources and a cost order may be made against them personally. The Practice Direction also expressly states that its provisions apply to litigants in person.
The Practice Direction concludes by acknowledging the area is rapidly evolving and will be kept under review with provision for it to be amended.
The guidance in the Practice Direction will be welcomed by practitioners. It enhances the existing duties and obligations of practitioners to accommodate changes brought about using AI. This will bring clarity at the current point in time whilst reserving the right to amend and vary it as AI evolves.
For more information please contact Thomas O'Dwyer, Sinead Grace or your usual contact in Beauchamps.