Civil Justice Council Publishes Consultation On Use Of AI For Preparing Court Documents

The key proposal is to require legal representatives to declare that AI has not been used to generate the content of trial witness statements.

Earlier this week, the Civil Justice Council (CJC) published an interim report and consultation on whether rules are needed to govern the use of AI by legal representatives for preparing court documents. The consultation paper sets out the CJC's initial thinking on the issues and invites comments on the proposed way forward.

In summary, the CJC proposes that legal representatives should be required to declare that AI has not been used to generate the content of trial witness statements, and that expert witnesses should explain what use has been made of AI in preparing their reports. Administrative uses for transcription, spell checking and so forth would not require a declaration, and nor would the use of AI for documents such as statements of case and skeleton arguments so long as it is clear who is taking professional responsibility for the document in question. See below for further detail on the proposals for various types of documents.

The CJC acknowledges that the capabilities of AI systems are changing rapidly and that legal practice is changing as a result, which it sees as a positive development as long as the interests of justice are kept firmly in view. Accordingly, the CJC's proposals aim to "maintain a balance, ensuring that the latest technology can be used to maximum advantage in the civil justice system in order to enhance access to justice by improving efficiency and reducing costs; while at the same time maintaining confidence in the rule of law".

Responses to the consultation are due by 14 April 2026 and Herbert Smith Freehills Kramer will be submitting a response. If any clients would like to discuss the consultation, please do get in touch.

Statements of case and advocacy documents

The CJC notes that statements of case, skeleton arguments and other advocacy documents (such as chronologies, lists of issues and agreed case summaries) are prepared by legal representatives who are subject to professional regulation.

Both barristers and solicitors have obligations to act with honesty and integrity in their dealings with the court, which include not misleading the court or advancing propositions which are not properly arguable. A legal representative would be in breach of those obligations if they presented a document that included AI hallucinations in the form of false case citations, references to legislation or legal texts.

Accordingly, the CJC proposes that, so long as a statement of case, skeleton argument or other advocacy document bears the name of the legal representative who takes professional responsibility for that document, there is no need for further rules to govern the use of AI in the production of those documents. In the alternative, the CJC proposes that the responsible legal representative should declare whether AI has been used in the preparation of such documents.

Trial witness statements

The CJC notes that witness statements are supposed to be in the witness's own words and should not be created by asking the witness leading questions. In the CJC's view, it is difficult to see how the rules concerning preparation of trial witness statements can be properly met if AI is used to assist with their drafting, other than for non-text generating purposes such as transcription.

The CJC therefore proposes that the rules be amended so that, in addition to a statement of truth, all trial witness statements that are prepared with the involvement of a legal representative include a declaration that AI has not been used for the purposes of generating the content of such a statement (including by way of altering, embellishing, strengthening, diluting or rephrasing the witness's evidence).

The CJC also consults on the use of AI to translate witness statements created in a foreign language. The consultation queries whether there should be a rule making provision for the use of AI by human translators, and whether there is a need to enquire any further if a translator is prepared to sign a statement of accuracy and takes responsibility for the use of AI. It also queries whether the use of publicly available machine translation should be permitted, provided the tool used is identified and it is clear that the other parties would be entitled to check the translation themselves by using such a tool. An alternative proposal is to permit the use of publicly available machine translation only by a legal representative (which the CJC says seems "unduly restrictive").

Non-trial witness statements

For witness statements in support of interim applications, which are often provided by a legal representative, the CJC considers that the approach should be similar to that for statements of case and skeleton arguments. Its primary proposal is that, so long as these statements bear the name (or possibly the firm name) of the legal representative responsible for their preparation, further rules concerning the use of AI should not be required. As an alternative, the CJC proposes that the use of AI be declared, but only when that use goes beyond "administrative uses" or facilitating the drafting of sections such as the summary of background facts or procedural history.

Expert reports

The CJC notes that, like legal representatives, experts are often regulated by their own professional bodies and are subject to distinct duties under the CPR. The CJC comments that, while it is difficult to see why using AI as a research tool or to extract material from voluminous documents should be disclosed, there will be circumstances where the failure to disclose AI use could lead to erroneous evidence being placed before the court.

Accordingly, the CJC proposes that experts be required to explain whether and how AI has been used in preparing their report (other than for transcription or "administrative uses") and identify the specific AI tool used. In the CJC's views, unlike trial witness statements, provided that the use of AI is properly identified and explained, the nature of an expert's evidence means that it may properly include AI generated material.

Disclosure

The CJC says that, while guidance concerning the use of AI in disclosure may be required in due course, current anecdotal evidence suggests that parties are cooperating in their use of AI to conduct disclosure exercises and the CJC is not aware of any case in which there has been a dispute that required the court's intervention. It states, therefore, that there does not appear to be a pressing case to require that disclosure lists or statements address the extent to which AI tools have been used, but asks whether consultees agree.

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