Senior judges have delivered speeches considering the effects of the growing use of artificial intelligence on the justice system.

In a speech titled ‘AI and Civil Justice: Preparing for the Tsunami’, Lord Briggs reflected on the courts’ relatively slow response to digitisation, which was often developed piecemeal and in haste as new technologies emerged. The result, Lord Briggs observes, was a series of practice directions developed “in a vacuum of governing objectives and principles, and [which] was in effect just driven along by the detail of the technological developments as they came off the digital production line”.

Lord Briggs is clear that the same ‘missteps’ cannot occur as the courts come to terms with artificial intelligence and its effects on the justice system, warning in particular of a coming ‘tsunami’ of small to medium value civil claims as, for example, litigants in person increasingly turn to AI to help draft pleadings and pursue disputes.

To respond to this increase in claims, he states that it is “inevitable that AI is going to have to come to the rescue of court staff and judges”, but the critical questions are in what form and to what extent.

For Lord Briggs, those are both democratic and practical questions. On the more practical side, he urges that work should begin now to identify the probable applications of AI in the civil justice system in the near future and to design procedural rules accordingly. These might include, for example, mandating the disclosure by legal representatives or litigants in person of the use of AI tools, or devising thorough rules on how judges may use AI to assist in their decision-making processes.

On the broader democratic side of things, Lord Briggs considers whether the only way to address the coming tsunami of claims is not merely the use of AI to improve the productivity of judges, but to use AI itself to reach decisions. That, he notes, is a matter for democratic debate, but he suggests that there might be a threshold below which there are cases where litigants are prepared to allow AI to reach decisions.

Lord Briggs is not alone in raising the possibility. In a recent speech, the Master of the Rolls, Sir Geoffrey Vos, said that “it is now inevitable that basic economics will dictate that routine judicial decision-making will be informed or directed by machines. There will be dedicated programmes that will be able to decide many routine cases as reliably as human judges. They will, in the first instance, be used only with the agreement of the parties, but that acceptance will rapidly become automatic, as the parties to disputes realise that it is far quicker and far cheaper to allow a machine to decide run-of-the-mill legal questions”.

How far AI will be permitted to inform or even replace routine judicial decision-making remains an open question, but Sir Geoffrey Vos stresses that businesses and citizens should “only be required to give up the right to have their obligations determined by a human judicial decision in favour of machine-made judicial decisions with their eyes open, with their fully informed consent and after the necessary legislative changes have been made following a mature and careful debate”.

The speeches from Lord Briggs and the Master of the Rolls can be read here and here.