The “economics of litigation” have changed due to AI, ex-lord chancellor Robert Buckland says
Ex-UK lord chancellor Robert Buckland has urged judges to use the costs regime to limit the influx of “AI slop” litigation filed by litigants in person, reported the Law Society Gazette.
According to Buckland, such litigation results in increased expenses for defendants, courts, taxpayers, and the justice system as they process “large quantities of superficially impressive, but unnecessary legal material,” per a statement published by the Gazette.
“A litigant in person can now take a grievance, and ask AI to turn it into a pleading, then witness statements, a skeleton argument, a list of authorities…The machine never gets tired. The litigant does not become embarrassed by the size of the document, and unlike a human lawyer, the machine has no instinctive sense that a particular argument is not worth making,” Buckland said at the Costs Law Reports conference last week; a snippet of his statement was published by the Gazette.
He added that the proliferation of AI-generated legal material has resulted in “a profound change in the economics of litigation.”
“Before, prolixity had a natural break. Not just an impatient judge, but the fact that someone had to pay the lawyer to produce submissions. AI removed that break, and I think the costs jurisdiction can and should provide another,” Buckland said in a snippet of his speech published by the Gazette.
Buckland rejected the idea that AI-specific costs rules needed to be developed, pointing out that CPR 44 authorized courts to set costs orders for unreasonable conduct. He said it needed to be clarified that “AI-generated conduct is still conduct within the meaning of those rules.”
Nonetheless, he discouraged the disparaging of litigants in person since many of these are unable to afford legal assistance.
“There needs to be a distinction between uninformed use and irresponsible use. A person who genuinely believes an AI-generated proposition to be right may need some education. A person who is told an authority doesn’t exist and continues to rely on it is behaving very differently,” Buckland said in a statement published by the Gazette. “The court needs discretion, and discretion requires the willingness to use it. Therefore I would favour a relatively simple development – and I’m sure many judges would [want] the same.”
He suggested that courts clarify at the start of a litigation that although AI may be used to help generate documents, litigants are responsible for ensuring accuracy, validating authorities, and examining factual statements. They must also check the proportionality of documents and ensure that irrelevant or repetitive information is not included.
Moreover, courts could caution that any unreasonable expenses resulting from AI use could factor into costs orders.
“That would put litigants on notice, and it would later give the costs judge a principled basis for acting in due course,” Buckland said in a statement published by the Gazette.
He reminded lawyers that “if you put it before the court, you own it.”
“The fact that ChatGPT, Claude, Gemini or some other system generated it is not a defence…We don’t need a new rule for every piece of software, but we do need clear statements of responsibility,” Buckland said in a statement published by the Gazette.
