Pilgerstorfer: Litigants must use AI responsibly
A judge has warned litigants in person (LiPs) that, like lawyers, they need to take personal responsibility for the use of AI in drafting court documents.
Marcus Pilgerstorfer KC, a deputy High Court judge sitting in the Employment Appeal Tribunal (EAT), made the comments [1] after a LiP filed a 300-page, 132,000-word ‘skeleton’ argument and told the respondents to highlight any inaccuracies by 4pm the following day.
“Simply submitting the product of generative AI to a court or tribunal, or placing the onus to check a document onto an opponent, is not acceptable,” the judge said.
“Where concerns arise that necessary checks have not been undertaken, or that they have been conducted inadequately, judicial enquiries and potential sanctions are likely to ensue.”
Citing both case law and judicial guidance, the judge said there was a clear message for both legal representatives and LiPs.
“Whilst the use of AI is not generally prohibited for tasks such as preparing skeleton arguments, all litigants must take personal responsibility for any document submitted to the tribunal and it must be carefully checked in the ways I have described, as thoroughly as the author is reasonably able.”
The judge was dealing with a long-running case where he was assessing whether Terence Hancox had a reasonable basis for appealing a 2021 decision to strike out his claim.
Mr Hancox filed the 300-page skeleton argument, which he said had been created using ChatGPT. Judge Pilgerstorfer observed that there has been a significant increase in the use of AI tools by litigants appearing before courts and tribunals.
“Experience in the EAT suggests that such tools are being deployed to help prepare notices of appeal, skeleton arguments and correspondence.”
The potential risks posed by the use of generative AI “are now widely known”, he went on.
“There is no principled reason why a litigant in person should not take reasonable steps to use it responsibly.
“Whilst such a litigant will not usually be subject to the professional duties with which the court in Ayinde was primarily concerned, the underlying principles of personal responsibility and accuracy apply to all persons who submit documents to a court or tribunal.”
This meant that, LiPs using AI should ensure, at a minimum, that all documents submitted comply with the procedural rules, “have been checked as thoroughly as the litigant or representative is reasonably able for accuracy”.
They should also ensure that factual, evidential and legal points, including references to authorities, are correct and that the court or tribunal “is not misled”.
Finally, they should contain only relevant points, “with the focus being on the central or best arguments, presented in an easily comprehensible manner and avoiding undue repetition”.
Judge Pilgerstorfer stressed that compliance with the EAT’s procedural requirements “is mandatory, not optional” and that, in future, a document such as the skeleton here “is likely to be rejected”.
Finding one ground on which Mr Hancox could appeal, he issued “clear case management directions to ensure that the case arrives ready to proceed on the day listed for the full hearing and to ensure the case stops taking up a disproportionate amount of the EAT’s resources”.