A Civil Justice Council working group recommended on 29 October that the CJC and the Civil Procedure Rule Committee urgently consider how litigants in person may use AI in civil proceedings.
The working group, co-chaired by Sir Colin Birss and Mrs Justice Joanna Smith, published its final report the same day.
Its Recommendation Two says the CJC, drawing on its Futures Group and working with the CPRC, “should as a matter of urgency consider the approach to be taken to litigants-in-person and their use of AI in civil proceedings”.
The group’s interim report, published on 17 February, left the subject out. Litigants in person, like judges, fell outside the working group’s terms of reference (paragraph 1.2 of the report).
That interim report nonetheless asked whether the CJC should look at the issue, and noted there might be some benefit in requiring litigants in person to declare any AI use (paragraph 4.4).
The final report says consultation responses showed strong support for CJC guidance and stressed that the matter needed urgent attention (paragraph 4.5).
The working group agreed. It described the absence of clear, accessible guidance for litigants in person as “a pressing concern” and said the absence of guidance “is a significant gap in the current framework” (paragraph 4.6).
It also said the CJC should be guided, as appropriate, by the views of the AI Committee as it develops that guidance (paragraph 4.8).
Recommendation Three asks the CPRC to codify in a Practice Direction the case law on the use, and sanctions for misuse, of AI by legal representatives and litigants in person. The report refers to hallucinated authorities as an example of a document that can attract sanctions (paragraph 4.15).
The report says the Practice Direction would draw the case law together in one place, and that it could be informed by the CJC’s work on litigants in person (paragraph 4.17).
Under Recommendation Eight, the CJC should also consider whether guidance is needed on litigants in person using publicly available AI translation tools.
The working group did not accept a suggestion made in consultation that HMCTS should issue AI guidance. It said HMCTS is not the proper body to do so (paragraph 4.15).
For legal professionals, the report recommends no new AI-specific declaration for statements of case, skeleton arguments or similar advocacy documents (Recommendation Four). It says professional responsibility and existing rules are sufficient.
It proposes a new declaration for witnesses of fact where AI has generated or influenced the substance of a statement (Recommendation Six), and a new declaration for expert evidence (Recommendation Nine). It rejects any requirement to seek permission to use AI (paragraph 2.10).
Regulators have already issued guidance. The Bar Standards Board published guidance on 18 May and the SRA issued a warning notice on misuse of AI on 17 August, both cited in the report.
Sir Geoffrey Vos, Master of the Rolls and chair of the CJC, welcomed the report. He said: “AI has the potential to support the effective administration of civil justice, but its use must not compromise the accuracy, reliability or integrity of material placed before the court.”
He said the report proposes “a proportionate, risk-based approach which maintains professional responsibility while introducing targeted safeguards where they are needed”.
On the litigant in person work, the report says the CJC’s conclusions, once issued, should be considered by the CPRC, which should revise the Practice Direction as necessary in light of them (paragraph 2.4).