The Civil Justice Council (‘CJC’) has published its final report on the ‘Use of AI for Preparing Court Documents’ (‘Report’). The EWI provided a response to the CJC’s consultation on its interim report earlier in the year.
Functional, risk-based approach to AI use
The Report considers the use of AI in the preparation of court documents in civil proceedings and sets out the preferred way of regulating such use of AI. The Report adopts a functional, risk-based approach to AI use. That approach identifies AI use that may generate or influence the substantive content of such materials and any resulting risk to the integrity of civil proceedings and the proper administration of justice. The Report notes that ‘generate substantive content’ refers to the production or modification of substantive content by an AI tool, whether intentionally or unintentionally. ‘Influence substantive content’ refers to the use of an AI tool which, without itself producing such content, affects its selection, analysis, development or evaluation.
Expert witnesses
The Report makes specific recommendations for revision to the Civil Procedure Rules with respect to expert evidence. It does not recommend categorising AI tools as generative, non-generative, administrative, analytical, etc, but instead focuses on whether the AI generates or influences substantive content and the risks arising from that use.
The Report recommends the introduction of a new declaration concerning the use of AI by experts. It recommends that experts should be required to make a new, specific declaration concerning AI use where such use generates or influences the substantive content of the expert’s report. Where made, the declaration should provide sufficient information, including, where necessary for this purpose, disclosure of the AI tool used to the opposing party and the court, to facilitate effective scrutiny of the expert evidence, including the methodology used, the appropriateness of AI use for that purpose, and its substantive content
The Report also recommends that the Guidance for the Instruction of Experts in Civil Litigation Claims 2014 be revised to provide guidance on how experts should determine whether the new AI declaration is required and, where it is, what information should be disclosed to enable effective scrutiny of their methodology and analysis. It should also provide guidance on good practice in the use of AI by experts.
The justification for the recommended approach is the need for transparency and the maintenance of a level playing field in the expert process. Transparency is required to enable the expert’s evidence to be scrutinised and tested effectively by opposing parties and the court.
Other court participants
The Report starts from the position that the regulation of AI use by legal representatives in the preparation of court documents should remain with legal regulators, supplemented by a Practice Direction prepared by the Civil Procedure Rule Committee.
With regard to the statements of witnesses of fact, the Report recommends that witnesses should be required to make a specific declaration that no AI tool has generated or influenced the substantive content of the witness statement.
The Report notes that the CJC, working with the CPRC, should as a matter of urgency consider the approach to be taken to litigants-in-person and their use of AI in civil proceedings.
The Report rejects a requirement that parties should apply for permission to use AI in the preparation of documents for civil proceedings.
CJC Working Party
The EWI will be participating in the CJC Working Party that is considering revisions to the CJC’s Guidance for the Instruction of Experts in Civil Claims 2014. We are looking forward to working with the other stakeholders on the Working Party to help develop practical and helpful guidelines on the application of the recommended new expert declaration and good practice for the use of AI by experts.
EWI AI Working Group
The EWI has established an AI Working Group which is developing content and training to support the appopriate use of AI by experts. The EWI intends to publish Guidance on the use of AI by experts which will be regularly revised to reflect changes in the technological and regulatory landscape.