The Divisional Court has recently handed down judgment in the cases of Ayinde v London Borough of Haringey and Al-Haroun v Qatar National Bank, which were heard together under its Hamid jurisdiction (which sets out the court’s inherent power to regulate its own procedures and to enforce the overriding duties owed to it by legal representatives). Our Professional & Financial Risks team take a look at the potential implications for the legal sector.
In the first case, the claimant had brought proceedings for judicial review against the London Borough of Haringey. The claimant was represented by Haringey Law Centre’s Mr Amadigwe (a qualified solicitor), Ms Hussain (a paralegal), and Ms Forey (counsel and a pupil barrister at the time).
In the grounds for judicial review, settled by Ms Forey, there were references to five cases (complete with citations) in support of the claimant’s position, none of which existed. This was raised by the defendant and subsequently dismissed by the claimant as an attempt to “…barter [the claimant’s] legal position for cosmetic errors as serious as those can be for us as legal practitioners.” The defendant subsequently applied for a wasted costs order.
At the wasted costs application hearing, Ms Foley unsuccessfully attempted to explain away the errors. The court commented that: “it is the responsibility of the legal team, including the solicitors, to see that the statement of facts and grounds are correct. They should have been shocked when they were told that the citations did not exist. Ms Forey should have reported herself to the Bar Council. I think also that the solicitors should have reported themselves to the Solicitors Regulation Authority.”
Whilst the court could not determine whether Ms Forey had used AI in preparing the pleadings, it considered the use of AI without proper checking was negligent. An order for wasted costs was made and the court referred the matter for the purpose of considering whether proceedings for contempt of court ought to be pursued against Ms Forey, Mr Amadigwe and Ms Hussain.
Before the Divisional Court, Ms Forey continued to deny using AI, though she did say that she may have used Google or Safari in conducting her research and may have taken account of AI-generated summaries of the results. She also stated that she had received little to no supervision during her pupillage.
Mr Amadigwe and Ms Hussain apologised to the court but said that it had not occurred to either of them that counsel would rely on authorities that did not exist.
The court found that Ms Hussain was not at fault in any way. It also considered there was no basis to suspect Mr Amadigwe had caused false material to be put before the court, though he was criticised (and referred to the SRA) for not taking adequate steps when it became clear the cases cited by Ms Forey were not genuine.
As for Ms Forey, though the court considered the threshold for initiating contempt proceedings had been met, it decided not to pursue this as there were a number of factual issues which could not be easily determined and also given the potential failings by those who were supposed to be supervising her during her pupillage. She was also referred to her regulator.
The claimant in the second case was Mr Al-Haroun, who was pursuing Qatar National Bank and QNB Capital for alleged breaches of a financing agreement. Mr Hussain of Primus Solicitors represented the claimant. The defendants applied to strike out the claim and the court ordered an extension of time for them to file evidence in support of their application. The claimant applied to set aside the order extending time, and both the they and Mr Hussain filed witness evidence in support of their application.
The court dismissed the claimant’s application, and in doing so commented that both the claimant’s and Mr Hussain’s witness statements contained references to eighteen fictitious authorities. The court described this as: “a conscious attempt to mislead or an unacceptable failure to exercise reasonable diligence to verify the material relied upon”, and referred the matter to be considered under the Hamid jurisdiction.
Before the Divisional Court, Mr Hussain stated that he relied on the claimant’s legal research (which the claimant admitted had been done using AI) without independently verifying it. He accepted he was wrong to do so and self-reported to the SRA. He also argued the application had been referred to counsel, who advised against it but did not pick up on the fictitious cases cited. However the court did not consider that counsel’s involvement warranted a referral to the Bar Standards Board.
The court described Mr Hussain’s failure to check the accuracy of the witness statements as “lamentable” and said that he had a duty to ensure the accuracy of documents put before the court and could not rely on a lay client for the accuracy of case citations. However, they did not consider there had been a deliberate attempt to mislead the court, and so the threshold for initiating contempt proceedings was not met. The matter was referred to the SRA.
In its judgment, the court commented that the existing guidance available from the relevant regulatory bodies is insufficient to address the misuse of AI in the legal profession.
It is clear that the use of AI for research, summarising cases (particularly the ‘AI Overviews’ given by internet search engines) and drafting is becoming more and more commonplace in the legal profession. However, these cases are a stark reminder that, whilst a useful tool, we cannot assume that information generated using AI is accurate. Such reliance without appropriate checking and supervision will land lawyers in hot water and (at the least) result in referrals to their professional bodies.
To that end, if using AI to conduct research or draft documents, lawyers still need to carefully consider the contents, ensure it is accurate and be careful not to include misleading information. Professional indemnity insurers and brokers may also want to ask questions about whether firms utilise AI and, if so, what measures are in place to ensure it is not relied on blindly.
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