High Court Issues New Practice Direction on the Responsible Use of Generative AI in Court Documents

Key Requirements

1. Responsibility Remains with the User

The Practice Direction makes clear that the use of AI does not absolve the user of their obligations owed to the Court. Any person responsible for a Court document remains personally responsible for all content filed in proceedings, regardless of whether AI assisted in its preparation. Material must be appropriately and independently verified before it is used in proceedings, and any limitation on the ability to do so must be disclosed to the Court.

Legal practitioners are required to ensure that their clients are informed of and understand their duty to the Court, and anyone swearing affidavits or making witness statements understands they have a personal responsibility to confirm the truth and completeness of any documents and not to mislead the Court.

2. Mandatory Verification of AI-Generated Content

Any material produced using GenAI must be independently verified under “human control and supervision” before submission to the Court. The Practice Direction specifically states that reliance on another AI tool to verify content will not be sufficient. Users should:

• fact-check and proofread;
• edit and adapt content to meet the particular circumstances of the case;
• verify all references to case law, legislation, textbooks or articles; and
• verify all extracts or quotations against their original source.

Particular care must be taken with regard to exhibits, images, recordings and other evidential materials.

3. Particular Rules for Evidence

The Practice Direction adopts a stricter approach where evidence is concerned. Affidavits, witness statements and expert reports must reflect the witness’s or expert’s own recollection, knowledge and evidence. Unless the Court directs otherwise, a declaration will be required confirming that AI was not used to generate or alter the substantive content of the affidavit, witness statement or expert report. Any use of GenAI in the preparation of an expert report must be disclosed.

Confidentiality and Privilege Considerations

Entry of privileged information into GenAI systems may result in that information losing its privileged status and could become disclosable in subsequent legal proceedings. Practitioners should proceed with extreme caution to ensure appropriate security, privacy and confidentiality safeguards are in place so that their professional and client confidentiality obligations are not compromised.

Addressing Potential GenAI Issues

If any party identifies a potential AI-related issue in a Court document, they should raise it with the other side first. If it is not corrected, it should be brought to the Court’s attention. Anyone who discovers an issue must notify the other parties and the Court promptly, with an explanation and corrected documents. The Court may order the responsible party to pay the costs of fixing the error.

Potential Consequences for Non-Compliance

Failure to comply with the Practice Direction may result in significant consequences, including:

• Sanctions on parties such as adverse costs orders, orders disregarding or rejecting Court documents in whole or in part, or striking out of claims or defences; and
• Referral of practitioners to the Legal Services Regulatory Authority or their professional body, and personal costs orders.

Practical Implications

1. All Court documents must be independently verified before filing to ensure accuracy and compliance;
2. Clients must be informed of and understand their duty to the Court, including their personal responsibility to confirm that any documents they sign are true and complete;
3. Medical experts must be instructed to include the required AI declaration in their reports, and standard instructions to experts should be updated accordingly; and
4. Witness statements and affidavits must include the AI declaration, and this requirement should be discussed with witnesses at the outset.

A special thanks to Kate Miller for her contribution to this article.