The Business & Property Courts (B&PCs) will have to embrace digital processes and artificial intelligence (AI) if they are to maintain their international pre-eminence, the Master of the Rolls has said.
Sir Geoffrey Vos said the High Court and B&PCs could not be exempt from the move to digital justice and in fact “need to be pro-active” in reforming their procedures for the digital age.
In a speech to mark the 150th anniversary of the Technology and Construction Court, the head of civil justice said it was “inevitable” that all civil, family and tribunal litigation would be undertaken through an online system, even though it may take “some time for the systems to be completed and expanded to cover everything”.
A single online dispute resolution platform would suffice. “Specialists in different types of litigation often seek to say that their type of litigation requires specialist online systems. In fact, however, all litigation follows a simple intuitive model that lends itself to digitisation.”
What made B&PC cases more complex than county court claims was “the identification of the real issues that require determination”, Sir Geoffrey went on.
“We use cumbersome processes to achieve that essential objective, often creating thousands of pages of pleadings and witness statements before managing to identify and address what are often distilled down into a few central legal and factual questions that truly divide the parties.
“I have said for many years that I do not believe that pleadings are required in every case. They are often over-complex and never referred to once the trial begins.
“I think the B&PCs need to be pro-active in reforming its procedures for a digital age… They should lead the revolution in digital justice for commercial cases in courts and even in commercial arbitration.
“The B&PCs must demonstrate that their international reputation for commercial dispute resolution is well-deserved and can be carried forward and enhanced in the digital age.”
The MR went on to outline the key tenets for digitising the B&PCs. First, it meant more than CE-file, because it did not allow for the end-to-end online case management needed in commercial cases.
Second, it must make maximum use of available AI technologies and of smart systems: “AI can help process the mass of data that modern TCC and B&PC cases create. It can help identify the issues that need to be determined. It can even suggest solutions to those issues, whether in the context of mediation or otherwise.”
Third was the point he has often made about how the nature of disputes would change to focus on digital assets, smart contracts and distributed ledger technology (DLT), and determining responsibility for error in the context of automated rather than human decision-making.
Sir Geoffrey went into more depth on how generative AI and large language models would change litigation.
“It is now reasonably clear that large language models like ChatGPT can provide answers, reliable or not, to basic legal questions in seconds. They will get better at it when their training is dedicated to legal data rather than a range of more general and perhaps less reliable sources.
“That said, the products of LLMs will always need human checking, just as the AI diagnosis of cancer needs to be checked before the news is delivered to the patient.
“Many of the litigation activities undertaken by junior lawyers and paralegals will change. We will be able to process and summarise large volumes of complex data in seconds without the need physically to read and digest thousands of pages or lever arch files.”
More importantly, he went on, DLT (ie blockchain) would mean less call for judges to resolve factual issues.
“AI should make it far easier to identify the legal issues, and any residual factual issues, between the parties. Dispute resolution, adopting the assistance of LLMs and other technological tools, will undoubtedly be quicker and easier. But there will be a steep learning curve for all of us between now and then.”
It would also improve disclosure and predict case outcomes. “What litigant, one might ask rhetorically, would not want to know what an established AI thought about their prospects of success, even if they also want to know what their lawyers think about what the AI predicted?”
Sir Geoffrey said that while AI had to be adopted “thoughtfully and safely”, safety concerns should not “prevent us adopting demonstrably valuable technology to improve access to justice and to allow dispute resolution to be delivered more quickly and at more proportionate cost”.