Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 113
Where are court rules heading
in the age of AI?
by Amanda Savage KC & Helen Evans KC at 4 New Square Chambers.
In just one week there have been two di昀昀erent
updates on the likely direction of travel for court
procedures in view of AI; one from the Civil Justice
Council’s Working Group and the other from the
Technology and Construction Court. Amanda
Savage KC and Helen Evans KC explain what’s going
on and why.
There are obvious advantages of this.[2] In
particular, it is hard to see how any meaningful
statement as to the use of AI can be given without
the legal representative providing quite detailed
information. This could be onerous and would be
liable to intrude upon the legal representative’s
“workings” or thought processes and infringe the
party’s privilege.
The overall direction of travel
On the other hand, it is clear that the use of AI in
these documents is causing problems: there have
been a signi昀椀cant number of cases recently heard
in Court and in the Tribunals dealing with actual
or suspected “hallucinations”[3]. This suggests
that, contrary to the optimism in the CJC’s Interim
Report and Consultation, the addition of the legal
representative’s name on the document – which
carries with it (or should carry with it) an acceptance
by the legal representative of his or her professional
responsibilities and compliance with professional
obligations – is not yet providing su昀케cient.
The CJC Working Group has been looking at how
courts should respond to AI use across a range
of work, including skeleton arguments, witness
statements and expert reports, as well as use of AI in
disclosure[1]. Its 昀椀nal report is not yet ready but in
late June 2026, it published a brief Update.
The CJC’s June 2026 Update con昀椀rms that the
“direction of travel” is:
•
Maintaining the current position for AI use in
professional legal drafting (i.e. it is not likely
to be necessary for lawyers to sign declarations
about whether AI has been used in producing
documents such as pleadings or skeletons);
•
Introducing “proportionate transparency” in
relation to expert evidence; and
•
Recognising the distinct and evolving challenges
posed by litigants in person.
Perhaps for this reason, the TCC Guide takes a
more nuanced position. It says that “whether and to
what extent legal representatives should disclose their use
of AI will depend on the context. However, any doubt as to
whether the fact that AI has been used should be mentioned
must be resolved in favour of disclosing such use” (p. 9)
[4]. Other jurisdictions have also made indications
favouring transparency: see for instance the decision
of the Irish Court of Appeal in Guerin v O’Doherty
[2025] IECA 48 (at para. 74).
This is not entirely the same as the guidance on AI
contained in the new TCC Guide, published on 1 July
2026, as explained below.
Witness statements
Legal drafting
The CJC’s June Update also states that “the group is
actively exploring whether a proportionate and workable
approach can be developed for witness statements,
including whether any form of disclosure would enhance,
rather than complicate, the administration of justice”.
It appears unlikely that the CJC Working Group will
impose a requirement for Court documents (such as
statements of case, skeletons) to contain a statement
by the legal representative explaining whether and
how AI has been used.
EXPERT WITNESS JOURNAL
111
AUGUST 2026
