An interesting decision on the use of AI from the Irish Court of Appeal (see paragraphs 72-76) – with potentially quite radical consequences.
The defendant litigant in person used AI to prepare the written submissions filed in support of her (unsuccessful) appeal. The submission referred to non-existent authorities, and she appeared not to have verified the existence of the authorities, or whether they supported the propositions advanced.
The court noted that all parties had an obligation not to mislead the court, and expressed the view that parties should “use AI appropriately and should be given guidance as to how they may properly use AI in their litigation”.
The following were said to be “principles of general application”:
- Parties are entitled to use AI to assist in carrying out research in respect of their case provided that they do so responsibly and do not, even inadvertently, mislead the court by advancing propositions or relying upon supposed authorities which in fact have no foundation at all and are simply hallucinations.
- In all cases where they do so, they should expressly inform both the other parties and the court of their use of AI in this regard.
- A self-represented party is responsible for the ultimate written or oral work in their case just as much as the lawyers representing parties are.
- It is important therefore that any party who uses AI as part of their research independently verifies the accuracy of their submissions and the authorities cited as supposedly establishing the propositions advanced.
- No authority should be cited by a party who has not actually verified that it is a genuine judgement of the court and that it is – or at least arguably is – authority for the proposition contended for.
Most of these points are unobjectionable – but the second could have far-reaching consequences. Unusually, it requires any use of AI for “research” to be disclosed. This goes even further than some of the most restrictive court guidance internationally (see e.g. the Federal Court of Canada) which tends to focus on the use of AI to ‘generate’ text for submissions.
How much detail must be given in such declarations? What impact will/should this have on the court’s decision-making? How will it affect the take-up of AI tools in the legal profession? Plenty to think about for both the lawyers and litigants and person subject to these new rules.
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