Former lord chancellor Sir Robert Buckland KC has called on courts to use their existing costs powers to discourage irresponsible use of artificial intelligence in litigation.
Buckland made the comments at the Costs Law Reports conference, where he argued that the widespread availability of generative AI has changed the economics of litigation by making it possible to produce large volumes of legal material at little or no additional cost.
He said litigants in person could now use AI systems to generate pleadings, witness statements, skeleton arguments and lists of authorities without facing the same practical constraints that previously limited the amount of material an individual could prepare.
According to Buckland, this can create additional costs for opposing parties, courts and the wider justice system when unnecessary or inaccurate material has to be reviewed.
He said the existing costs jurisdiction under the Civil Procedure Rules could provide a way of addressing unreasonable conduct and that courts did not necessarily need a new set of rules specifically dealing with artificial intelligence.
Buckland argued that courts should make clear at an early stage of proceedings that AI can be used as an aid, but that responsibility for material filed with the court remains with the person submitting it. He suggested that parties should be warned that authorities need to be checked, factual assertions verified and documents kept proportionate to the issues in dispute.
He also distinguished between inexperienced use of AI and deliberately irresponsible conduct. In his view, a litigant who genuinely believes information generated by an AI system to be accurate should not automatically face a costs sanction, while someone who continues to rely on material after being warned that it is false or irrelevant could be treated differently.
Buckland said litigants in person should not be treated as a separate or inferior category simply because they use AI, noting that many people involved in litigation cannot afford legal representation.
He also said professional lawyers could not rely on the fact that an AI system had produced inaccurate material as an excuse for errors appearing in documents submitted to a court. His position was that the responsibility for material put before the court remains with the person or lawyer who files it.
The former lord chancellor said the courts already have sufficient discretion to deal with unreasonable conduct through costs decisions and that clearer guidance about responsibility for AI-generated material could provide judges with a principled basis for exercising those powers.
Buckland served as lord chancellor and secretary of state for justice from 2019 to 2021. He is now a practising barrister at Foundry Chambers and a consultant at DAC Beachcroft.
The comments come amid growing scrutiny of the use of generative AI in legal proceedings, including concerns about inaccurate authorities, fabricated material and the submission of unnecessarily lengthy documents.
