The Double-Edged Sword of A.I. use for Drafting
The recent case of R(Ayinde) v Haringey LBC is unique in standing as a watershed moment, an indicator of a generational shift in the approach to work, and a stark cautionary tale to any who are considering, or already, utilising A.I. to aid writing.
In brief, the claimant for this judicial review claim was represented by a junior barrister (4 years’ qualified and asserted to be very experienced in cases concerning homelessness) and a solicitor from a well-known organisation in the same field (there is nothing to be gained in naming those concerned for the purposes of this blog). The issue that arose had nothing to do with the actual facts of the claim. A number of grounds were relied upon by the claimant, in support of which her counsel cited various cases in the pleadings. Upon being unable to locate 5 of these cases, the Defendant asked for copies of them. The Claimant’s legal representatives did not respond in the tone one might expect when it became apparent that an error had occurred. These cases could not be located by the Defendant for a very good reason – it was not due to a typographical error in the referencing, they simply did not exist. As acknowledged by the Judge, the arguments being made were largely sound, but be that as it may, the Claimant’s legal representatives had justified their position by reliance on false cases. Naturally, their refusal to admit that they had done anything wrong, the Defendant brought a wasted costs application.
Whilst the Court did not have sufficient evidence to reach a definitive conclusion, the strong inference from the facts taken by the Court is that the error had occurred because counsel had used A.I. to assist with their drafting, but they had failed to check the work before relying upon it. The Court not only made a wasted costs order against the Claimant’s legal team based upon this, the Judge commented that if A.I. had been used to draft the Grounds and they were not checked prior to being issued, it would amount to professional negligence.
Whilst not commented upon by the Court, it is an error that also clearly bears the risk of fitness to practice or professional misconduct proceedings being commenced against an unfortunate professional caught short by their shortcut.
Legal practice must move with the times as with any other professions. The consideration may increasingly be becoming one of ‘how’ to use it effectively and responsibly rather than ‘if’ to use A.I. in a professional setting. However, as with any seismic shift, rational caution is to be recommended, and professional duties must always be at the forefront of one’s mind.
Please keep an eye out for part two of this blog series where we look at the use of A.I. in higher education.
