Generative Artificial Intelligence Risks for Litigation Lawyers

In R (on the application of Frederick Ayinde) v The London Borough of Haringey AC-2024-LON-003062 the President of the King's Bench Division (Dame Victoria Sharpe) and Mr Justice Johnson gave judgment in two[1] referrals that had been made under the Hamid[2] jurisdiction. That jurisdiction is the court's inherent jurisdiction to regulate its own procedures and enforce the obligations that lawyers owe to it. 

The referrals arose out of non-existent citations made by lawyers in legal documents filed with the court. The court set out comprehensive and clear guidance about the responsibilities of lawyers in relation to the use of generative artificial intelligence in legal proceedings, the means by which citations can be checked, and the serious implications for the administration of justice and public confidence in the justice system arising out of the misuse of artificial intelligence. It emphasised too the need for those in leadership roles in law firms, chambers and regulators to take measures to ensure that every individual providing legal services in the jurisdiction understands and complies with their legal and ethical duties in the use of artificial intelligence.

The court held that the existing guidance from regulators was on its own insufficient to prevent the misuse of artificial intelligence and that more had to be done. The court invited the Bar Council, the Law Society, and the Council of the Inns of Court to consider what more needs now to be done "as a matter of urgency". The regulators will, no doubt, now review the existing regulatory material and framework in the light of the judgment.

The judgment starts with an explanation of the current guidance about the limitations of artificial intelligence and the risks of using it for legal research. This includes the BSB's January 2024 guidance on the use of generative AI, the SRA's 20 November 2023 Risk Outlook report, the 8 October 2023 BSB blog on Chat GPT in the Courts (referring in turn to the American case Mata v Avianca, Inc.), and the judicial guidance published first in December 2023 and updated in April 2025. All of this is to the effect that generative artificial intelligence can provide fabricated and/or biased and/or inaccurate output and that the professional and ethical responsibility is on the lawyer to check all generated material that she or he relies on.

It then proceeds to outline the relevant regulatory obligations on barristers and solicitors.

For barristers this focuses on Core Duties in the BSB Handbook including the duty to the court in the administration of justice (CD1), acting with honesty and integrity (CD3), not diminishing the public trust and confidence in the profession (CD5), and providing a competent standard of work (CD7). That is aimed at achieving outcomes where the court is able to rely on the information provided to it by barristers (Outcome 1), the administration of justice is properly served (Outcome 2), and barristers understand their duty to the court (Outcome 4). It further sets out the rules preventing any misleading of the court and drafting accurate and appropriate documents. At paragraph 21 the court outlined the requirements in the Bar Qualification Manual around the training of pupil supervisors and the supervision and signing off of pupil barristers.

For solicitors the court outlined provisions in the SRA's Code of Conduct for Solicitors and in particular the duty not to mislead the court or others (rule 1.4), the duty not to put forward statements that are not properly arguable (rule 2.4), not to waste the court's time (rule 2.6), to draw the court's attention to relevant authorities (rule 2.7), to provide a competent service (rule 3.2) and to remain accountable for work conducted on the solicitor's behalf by others (rule 3.5).

It then outlined the court's powers to ensure that lawyers comply with their duties to the court. Those include public admonition of the lawyer, costs orders, wasted costs orders, striking out of a case, referral to regulators, initiation of contempt proceedings, and referral to the police. The appropriate response turns on the facts of the case and is likely to include (a) "the importance of setting and enforcing proper standards" (b) the circumstances under which the material came to be before the court (c) the candour of any immediate response given to the court and other parties (d) steps taken to mitigate the damage (e) the effect on the court and other parties (f) the impact on the litigation and (g) the overriding objective.

The Ayinde case

Ayinde is a claim for judicial review of a housing decision by a local authority. The claimant was represented by Haringey Law Centre and a pupil barrister. The Ayinde pupil settled grounds for the judicial review that misstated the effect of section 188(3) of the Housing Act 1996 and relied on five cases which do not exist. The issue became apparent to the defendant who then raised the point with the claimant's lawyers. Haringey Law Centre provided a response drafted for the most part by the Ayinde counsel. It suggested that the erroneous citations could be easily explained but that it was not necessary to do so and that the citations could be corrected before the hearing in April. It gave its "deepest apologies" but also described the errors as "cosmetic". The defendant then applied for wasted costs against Haringey Law Centre and the Ayinde pupil. That application came on before Ritchie J on 3 April 2025. The Ayinde pupil did not give formal evidence at that hearing but provided and explanation for the error that did not include the use of artificial intelligence.

In his judgment the same day (R (on the application of Frederick Ayinde) v The London Borough of Haringey [2025] EWHC 1040 (Admin)) Ritchie J rejected that explanation but felt unable to make a positive finding that the Ayinde pupil had used artificial intelligence. He found that the Ayinde pupil had intentionally put the citations into the grounds not caring whether they existed and that that was improper and unreasonable conduct. He said that if artificial intelligence had been used and the citations not then checked then that would amount to negligence. He found that the response provided to the defendant by Haringey Law Centre was in parts unprofessional, unfair, and wrong. He said that the characterisation of the error as "cosmetic" was grossly unprofessional. He said that there had been an obligation on both Haringey Law Centre and the Ayinde pupil to check that all of the statements of facts and grounds were correct and that the citation of five fake citations was clearly professional misconduct. He said that Haringey Law Centre and the Ayinde pupil should have reported themselves to their respective regulators.

Ritchie J ordered each of the Ayinde pupil and Haringey Law Centre to pay £2,000 to the defendant and required the matter to be reported to the SRA and the BSB. Then on 9 May 2025 he referred the matter to the Hamid judge.

In the Hamid referral the Ayinde pupil said that she undertook her research from electronic sources. She said that those included searches on "Google or Safari" and that she may have inadvertently taken account of artificial intelligence generated summaries of the results. She accepted that she acted negligently and unreasonably but denied that she had acted improperly. She relied amongst other things on the paucity of supervision of her work from her chambers. She also disclosed another instance of putting false material before the court resulting in the judge writing to her head of chambers and raising the issue of a referral to the BSB. The judge was given sufficient assurances not to make such a referral. In the light of her reliance on her training and supervision her chambers was invited to make representations at the hearing. A representative of chambers sent an email after the hearing denying the allegations of inadequate supervision.

The solicitor and (non-qualified) paralegal at Haringey Law Centre both apologised to the court. The solicitor pointed out that Haringey Law Centre was a charity that operated with minimal funding and relied heavily on specialist counsel. He pointed out that it had not occurred to them that they would need to check the authorities relied on by counsel and had never done so. They had instructed the Ayinde pupil to prepare the response to the defendant and had not appreciated from that response that the cases did not exist; they thought that there were minor errors in the citations. He subsequently instructed his colleagues that all citations from counsel needed to be checked.

Since the hearing before Ritchie J privilege had been waived and more of the relevant communications were before the court.

The court found that the paralegal was not at fault in any way. She had acted entirely in accordance with what she was told to do by the solicitor and the Ayinde counsel.

The court observed that no evidence had been provided that the fake cases could have been generated in the manner contended for by the Ayinde pupil. It rejected her explanation as to how it had happened. It said that on the evidence before it there were two possibilities – either she had deliberately included fake citations or she did use generative artificial intelligence and had lied about that in her explanation. Both of these would amount to a contempt of court and the threshold for initiating contempt proceedings was met.

Despite this, the court decided against doing so. The court took into account various factors in coming to that conclusion. The first was the difficulties in determining various of the factual issues in summary contempt proceedings. The second was the potential failings in relation to her training which could not be determined in such proceedings. The third was the public admonition that she had already received and the reference to and investigation by her regulator. The fourth was the fact that she was a very junior lawyer operating outside her level of competence. The fifth was the court's main priority of ensuring that lawyers understood the consequences of using artificial intelligence.

The court emphasised that the decision was not a precedent and that lawyers that do not comply with their obligations in relation to artificial intelligence risk severe sanction. It also made its own additional reference to the BSB to investigate amongst other things the other instance of false cases being advanced and her subsequent explanations given to the court, the circumstances in which her list of cases came to be deleted from her computer, and whether those responsible for her supervision in chambers had complied with their obligations.

The court found that the solicitor had not deliberately advanced false cases and so there was no question of initiating contempt proceedings. But it was critical of the steps taken to respond to the defendant once the position had become clear. It accepted that Haringey Law Centre was an overstretched charity providing a valuable service to vulnerable members of society with limited resources. However, it found that that made it all the more important to adhere to professional standards and instruct others that adhere to them. It made an additional reference to the SRA in relation to (a) the solicitor's response to the defendant and (b) the steps taken to ascertain the competence and experience of the Ayinde counsel.

The Al-Haroun Case

The Al-Haroun case concerns an alleged breach of a financing agreement by two banks which sought to dispute the court's jurisdiction and strike out the claims. The claimant applied to set aside an order giving the defendants additional time to serve evidence in support of the application. The claimant's lawyers filed a witness statement made by the claimant himself and the solicitor. The solicitor's witness statement and correspondence with the court relied on forty-five cases. Eighteen of these did not exist. Of those that did exist, many of them did not support the proposition asserted and many passages quoted from them did not exist.

Dias J dismissed the application and made a Hamid referral in relation to the conduct of the solicitor. She described the matter as being of the "utmost seriousness" and said "Putting before the court supposed “authorities” which do not in fact exist, or which are not authority for the propositions relied upon is prima facie only explicable as either a conscious attempt to mislead or an unacceptable failure to exercise reasonable diligence to verify the material relied upon.". She noted the importance to the administration of justice of courts being able to rely on the professionalism and integrity of those who appear before it.

The claimant accepted responsibility for the inaccurate and fictitious material in his own witness statement saying that it came from publicly available generative artificial intelligence tools. He did not intend to mislead the court or his solicitor or the defendants and apologised. He sought to absolve his solicitor from responsibility for it.

The solicitor accepted that his witness statement contained non existent cases and explained that he had relied on research undertaken by the claimant himself. He accepted that this was wrong, said that he had no intention of misleading the court and had reported himself to the SRA. He apologised to the court and said that he had removed himself from litigation matters and was undertaking appropriate training. The firm itself accepted that its conduct "could not be worse" and that the "very last thing that a solicitor should do is rely on the research of a lay client". The firm contended that no further action was necessary from the court in circumstances where the error was not deliberate, there had been a report to the SRA, and counsel had not drawn attention to the point. (Counsel had reviewed the material, advised adversely on the merits but took no further part in the application.)

The court found that the claimant's own acceptance of responsibility did not absolve the lawyers; it was extraordinary that the lawyer was relying on the legal research of the client. There was scope for argument as to whether counsel should have spotted the issue but the incomplete evidence on the point meant that it would not be appropriate for it to refer the point the BSB. That did not prevent the solicitor raising the point in mitigation and/or making a complaint himself.

The court accepted that the solicitor did not deliberately mislead the court but held that a solicitor is not entitled to rely on the accuracy of citations of authorities or quotations provided by the lay client; it is the solicitor's duty to check the accuracy of the material himself. The court did not consider that the threshold for initiating contempt proceedings was met. It referred the solicitor's conduct to the SRA (in addition to the solicitor's own self-report).

Discussion

The court was extremely concerned about these instances of fictitious and inaccurate material being advanced to it and the opponents. The focus of the court's attention was aimed at preventing damage to the administration of justice and the public confidence in the judicial system. There were no initiations of contempt proceedings but the position would have been different if the errors were deliberate. And in each case the court noted the existence of regulatory investigations and supplemented the reporting in both cases.

The call for representative bodies and/or regulators to review the current guidance and frameworks will no doubt result in those bodies undertaking such a review. The issue raised in the judgment is a relatively straightforward point about the limitations of generative artificial intelligence, the responsibilities of lawyers and the damage to the administration of justice. However, it touches on a number of different areas of regulation and legal practice including supervision, ethics, training, and responsibility for work.

Regulators are likely to focus in particular on training and supervision within firms and firms will wish to ensure that litigators are appropriately trained and supervised and that they are able to evidence that training. The training arising from the use of publicly available generative artificial intelligence is relatively straightforward but clearly very important. Beyond that, training and supervision in other emerging technologies is likely to be tailored towards the products used by each firm and the risks associated with them.

Firms will also wish to consider carefully the degree to which they are able to rely on information from other sources and mitigate the risk of wrong or inaccurate generative artificial intelligence infecting material which they submit to the court and/or opponents. The court in Ayinde highlighted a need to ensure that counsel instructed were sufficiently experienced and competent. In addition, it was suggested that there was an obligation on the solicitor to check the authorities relied on by counsel and presumably any quotations from them. This may be a surprising contention in some contexts of legal practice. Indeed, many clients may be surprised to have to pay for that degree of cross-checking. Equally, although the court in Ayinde pointed out that Haringey Law Centre had the benefit of legal aid funding it would be surprising if it extended to cross-checking authorities and quotations provided by counsel. Some firms may now feel the need to consider requiring counsel to warrant in their contractual terms the existence of the authorities that they rely on and provide an indemnity. In other solicitor and barrister relationships this is unlikely to be an issue. The fatal reputational damage (whether public or otherwise) from reliance on a non-existent case is likely to be incentive enough for most counsel.

Nonetheless, the regulatory obligation not to mislead the court or others (at rule 1.4) continues to subsist as a regulatory obligation and the decision of Mrs Justice Lange DBE in Solicitors Regulation Authority Limited v Dentons UK and Middle East LLP [2025] EWHC 535 (Admin) highlights an uncertainty as to whether a culpability or seriousness threshold will apply in that or the other applicable rules and principles.

In this case the court highlighted authoritative sources as "the Government’s database of legislation, the National Archives database of court judgments, the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales and the databases of reputable legal publishers". However, that was in relation to case law. Solicitors, barristers and courts also rely on edited sources of legal research and errors can occur in practitioners' manuals and headnotes. Those may be relatively rare but firms may find that artificial intelligence begins to become incorporated into those more conventional edited sources of research. This may be something that firms will need to be alert to in the future in addition to the specific risks associated with particular technology products that they use.

The SRA's current three year corporate strategy highlights its desire to support innovation and technology. It considers that there is a public expectation on it to deepen its work in this area amongst other things to develop "appropriate technology solutions that can help the public, including vulnerable and marginalised consumers, to access legal services". A particular aim is to support small firms. That strategy is aimed at technology beyond the mere use of publicly available generative artificial intelligence. But it does highlight a potential area of tension between the effective administration and the desire to further access to justice through the use of technology. This is not the last case that will emerge from the use of emerging technologies. The different types of emerging technologies and use cases will generate much more complex issues than this case in the future.

[1] R (on the application of Frederick Ayinde) v The London Borough of Haringey AC-2024-LON-003062 and Hamad Al-Haroun v Qatar National Bank QPSC and another CL-2024-000435

[2] R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin) [2013] CP Rep 6, R (DVP) v Secretary of State for the Home Department [2021] EWHC 606 (Admin) [2021] 4 WLR 75.