Two recent High Court cases highlight the potential risks of the use of AI in court proceedings.
Discussion of AI and its use is becoming ubiquitous, but it is worth highlighting the financial, professional and reputational consequences of relying on AI in the preparation of legal arguments before the courts. The cases of R. (on the application of Ayinde) v Haringey LBC and Bandla v Solicitors Regulation Authority (Ayinde and Bandla respectively) demonstrate what is stake.
To put the decisions into context, it is common practice for legal representatives, in preparation of their cases, to cite case law, that is, previous court decisions that support their arguments. In both of these cases, it was found that some of the cases relied upon simply did not exist.
Both Bandla and the representatives of Ayinde denied that they had used AI to aid them in their legal research and it is notable that the court in each case did not make a finding that AI was used. However, there was not an adequate explanation in either case as to how the fake case law had made it into documents submitted to the court.
In both cases, the position of Bandla and the representatives of Ayinde was exacerbated by their subsequent actions. The fake case law was spotted early by the legal representatives of the opposing parties. However, in Bandla, as stated by the presiding judge, “The citations were included, and maintained, in formal documents before the Court. They were never withdrawn. They were never explained.” This appears to have been a serious aggravating factor in the eyes of the court.
In Ayinde, the position was worse again. It was “appalling professional misbehaviour” on the part of Ayinde’s barrister and solicitors, when the fake cases were spotted, to “finesse them into being ‘minor citation errors’.“
It was all the more regrettable given that the underlying claim was in fact settled in favour of Ayinde. The net result was wasted costs awarded against the solicitors and barrister and a further reduction of costs awarded in the main action. If any further proof of the court’s zero tolerance attitude to submission of fake case law were needed, it was ordered that a transcript of the hearing be sent to the Solicitors Regulation Authority and Bar Council. Presumably, disciplinary action will follow.
The impact of AI in all sectors, whether legal or not, is much on the minds of industry leaders. However, perhaps the risks of relying on the same has not had enough attention. AI has become much more accessible in the last two years and has been integrated into many of the leading search engines. What is clear at this point is that AI is no substitute for a skilled legal advisor researching and reviewing key authorities.
