The Upper Tribunal has added its voice to concerns about the use of artificial intelligence by lawyers in court proceedings.

It was not too long ago that the President of the King’s Bench Division delivered a judgment in which she wrote that “artificial intelligence is a tool that carries with it risks as well as opportunities. Its use must take place therefore with an appropriate degree of oversight, and within a regulatory framework that ensures compliance with well-established professional and ethical standards if public confidence in the administration of justice is to be maintained”.

Various steps have already been taken to try to introduce guidance on the responsible use of AI, including advice on generative AI from the Law Society, and guidance for barristers from the Bar Council. Similarly, the Civil Justice Council recently consulted on whether rules are needed to govern the use of AI by legal representatives for the preparation of court documents (discussed here).

What is clear, however, is that despite these warnings and attempts at regulation, courts are continuing to encounter legal representatives citing false cases.

Two such incidents recently came before the Upper Tribunal of the Immigration and Asylum Chamber. While the Upper Tribunal acknowledged that the use of legal AI programmes is “a step forward in legal practice”, its use must be approached with extreme caution, not only to avoid wasting the Court’s time as judges try to identify fictional cases, but also to escape regulatory action where, for example, a legal representative fails adequately to supervise those conducting research.

The Upper Tribunal made a further interesting and important point in relation to the use of certain AI tools and how it affects legal privilege, stating that uploading confidential documents into an open-source AI tool such as ChatGPT or Claude places the information “on the internet in the public domain” (as opposed to when closed source AI tools are used). As a result, client confidentiality may be breached, and legal privilege waived.  

Quite apart from the implications for a case of a document losing its privileged status, the Upper Tribunal also added that uploading such information to public AI tools “might itself warrant referral to the regulatory body and should, in any event, be referred to the Information Commissioner’s Office”.

To read the judgment in full, click here.