Birss: AI often helps litigants in person
Artificial intelligence (AI) is helping judges avoid jigsaw identification of individuals when anonymising judgments, the Chancellor of the High Court has said.
Sir Colin Birss said he also used AI to “identify internal inconsistencies” in his own judgments.
He explained that anonymisation was a “particular issue in the family area” but not limited to that. Judges used AI “as a tool” to help them produce anonymised versions of judgments, by making suggestions.
“The judge can use them or not, and of course it is the judge who is responsible for the final version.
“However the tool has been found to be valuable and, in particular, some judges have commented that the AI has identified pieces of information as candidates for anonymisation, which are not the obvious things to redact, like the names and so on.
“The AI identified information combinations which might risk a kind of jigsaw identification of the individuals concerned.”
Speaking to the City of London Law Society, Sir Colin said he used AI “to identify internal inconsistencies in my own work”. Once he had finished writing judgments, he gave them to the secure Copilot system on his computer and asked it to identify internal inconsistencies.
“It is remarkably effective. What I choose to do with the proposals is up to me. I don’t always agree with the AI but it has been helpful and I have clarified wording in draft judgments as a result.”
Judges could also AI for administrative tasks. “With the form of Copilot available to leadership judges like me, the ability to find things in emails and files has been transformed. No longer do I need to do word searches on old emails.”
Meanwhile, working with HM Courts and Tribunals Service and the Ministry of Justice, judges were looking at using AI as an in-house transcription tool, which had the potential “to make a big difference in all our courts and tribunals”.
In a speech entitled Legal professional privilege in the age of AI, Sir Colin said that “like courts all over the world”, the High Court was seeing an increase in use of AI by unrepresented litigants in drafting material presented to the court.
“Now the volume of this material can present a new challenge for us but it is worth emphasising that there is also a sense in which this use is pro-access to justice.”
He went on: “My own experience, and the experience of other judges I speak to, is that quite often the litigant’s case is presented more clearly and coherently than I would have expected in similar circumstances in the past.”
However, “if one wanted to extend the common law concept” of legal professional privilege to interactions between members of the public and generative AI such as ChatGPT – and Sir Colin said he was not expressing a view on this either way – the issues raised by the leading Supreme Court case of R (Prudential) v Special Commissioners of Income Tax [2013] UKSC 1 would have to be confronted.
In that case, the majority decided not to extend the common law privilege beyond the legal profession to include other advisers, such as tax accountants.
Sir Colin said there was “another dimension” which needed to be considered – confidentiality. “What if – as public ChatGPT is – the AI service used by the individual is a public system?”
Confidentiality had always been “a prerequisite for the attraction of the privilege”, so “even if one did extend the concept of the privilege to include advice from AI, on the current approach, it would not seem to attach to the interactions with these public AI systems because they do not appear to be confidential.
“Now there may be more to be said about the precise factual position of information entered into these public systems, but on any view one cannot assume that confidentiality is preserved.”
He also raised the question of whether a lawyer using AI to help them provide advice to the client impacted on the client’s privilege.
“Assuming the lawyer has used a secure system, I would suggest that it is hard to see how that could have an impact on privilege,” he said, comparing it with consulting other sources of legal advice, like textbooks.