Expansion of artificial intelligence into the dispute resolution process

Recent years have seen a wide expansion in the use of generative AI –  deep-learning models that can generate high-quality text, images and other content based on the data they were trained on – across the legal profession and notably, its relevance to the court and tribunal system.

Whilst advancements in the profession are welcomed, AI has arguably brought about question as to accuracy, reasoning ability and lack of humanity and consequently the risk that comes with it is something that solicitors and other judicial office holders must be alive to.

December 2023 saw the UK judiciary publish guidance for judges on the use of AI within litigation, setting out the professional obligation legal representatives have in ensuring that material put before the court is accurate.

In Harber v Commissioners for His Majesty’s Revenue and Customs [2023] UKFTT 1007 (TC) a litigant in person was found to have used a generative AI tool to unknowingly generate fictitious case citations in a tax tribunal.

Perhaps due to the claimant being a litigant in person, she was not penalised for relying upon fictitious cases and it was accepted that she was unaware that the cases were fabricated. That being said, the tribunal determined that the citing of fabricated cases amounted to a “serious and important issues”.

Not unlike humans, AI can have biases which if not spotted, can lead to unfair or inaccurate outcomes. AI can also cause problems when they follow the wrong patterns in data. When using AI within a law firm, it is important to remember that you will remain responsible for the product you are adopting from AI and any errors that may follow.

Despite the apparent risks, the guidance does set out that the use of AI and in particular generative AI to assist in research or preparatory work to produce judgments is permitted as “a potentially useful secondary tool”.

Generative AI can be used in a variety of ways including:

• Analysing contracts
• Drafting or summarising documentation
• Predicting case outcomes.

In September 2023, Lord Justice Birss revealed that he used a generative AI tool to provide a summary of an area of law, following which he included in his judgment. This demonstrates that generative AI has already penetrated into the legal system.

The use of AI such as predictive models and machine learning algorithms may therefore be a welcome addition as these technologies have the ability to improve the efficiency and cost-effectiveness nature of the Dispute Resolution process and ultimately be more economical for parties involved.

The inclusion of AI has the potential to provide efficiencies and inventive approaches to elements of litigation along with cost savings. However, solicitors, other judicial office holders and litigants in person must be alive to its limitations and risks, particularly given their professional duties and duties to the court.