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Aipedia: Barristers
AI can produce a first draft of particulars of claim, a defence or grounds of appeal, but counsel must ensure every contention is properly arguable and every fact has a basis. Pleadings frame the whole case, so an invented fact or ground can damage it from the start.
Part of: AI in Barristers
In short
Statements of case carry a statement of truth, and rC9.2 bars counsel from drafting unsupported statements of fact or contentions. AI drafting tools can fill gaps with plausible but unfounded facts, misstate a cause of action or, as in Ayinde, cite authorities that do not exist in grounds. The CJC has not proposed an AI-specific rule for statements of case where the responsible lawyer is named. Errors can lead to amendment or strike-out applications, adverse costs, wasted costs and a negligence claim handled under counsel's BMIF cover.
Counsel use AI to turn a solicitor's case summary into draft particulars, set out the elements of a cause of action, draft a defence responding paragraph by paragraph, or produce grounds of appeal or judicial review from a judgment. These are tasks where AI output looks complete. The danger is that the tool fills gaps: it may plead a fact the client never gave, adopt an element of a test from the wrong jurisdiction, or add supporting authority that does not exist.
The BSB's AI guidance ties drafting to CD1, rC3 and rC6 (not misleading the court) and rC9.2 (no unsupported statements of fact or contentions). A contention must be properly arguable and a pleaded fact must come from the client's instructions or evidence, not from a tool. Statements of case are verified by a statement of truth, so an invented fact in counsel's draft can end up in a verified document. CD7 and rC20 make the quality of the draft counsel's personal responsibility. The CJC proposed no new AI rule for statements of case where the responsible lawyer is named, leaving these duties in place.
Ayinde is a pleading case. The judicial review grounds settled by a pupil barrister cited five fictitious cases. The court ordered wasted costs of £2,000 against counsel and against the law centre, found the contempt threshold met but did not pursue it, and referred counsel to the BSB. Grounds of appeal in the Upper Tribunal have produced similar findings; see AI in immigration and asylum appeals.
Counsel is often asked to settle a pleading that a solicitor, paralegal or the client has already drafted, possibly with AI. Settling a draft means adopting it. Ask how the draft was produced, check pleaded facts against the instructions as if starting from scratch, and look out for the signs of machine drafting: generic allegations, authorities you do not recognise, or a chronology that is more precise than the documents support. A public access client who arrives with an AI draft raises the same issue; see public access clients who use AI.
Illustrative: counsel uses AI to produce particulars of claim from a case summary. The draft pleads a meeting at which a representation was made; the summary mentioned a phone call. Counsel misses the change. The defendant's evidence shows no meeting took place, the claimant has to amend, credibility is damaged and the client is ordered to pay the costs of the amendment. The client blames counsel.
A client claim for costs of amendment, a struck-out claim or a lost cause of action is usually a civil liability claim within the compulsory BMIF minimum terms, which require at least £500,000 each and every claim and contain no AI exclusion. Wasted costs against counsel personally depend on the policy wording. BSB fines and disciplinary costs are permitted exclusions. If a pleading problem emerges before any claim, consider whether it is a circumstance to notify; see notifying circumstances and does BMIF cover AI mistakes.
Apex arranges PI for barristers and can review how your cover treats claims arising from AI-assisted drafting. See also AI-drafted skeleton arguments and the AI at the Bar hub.
You can use it as a drafting aid, but every fact must come from instructions or evidence and every contention must be properly arguable under rC9.2. The BSB guidance warns that AI makes errors in reasoning as well as citations, so the draft needs a full check.
Not at present. The CJC consultation proposed no new rule for statements of case or skeletons where the responsible lawyer is named, because that lawyer already carries professional responsibility. A declaration has been proposed for trial witness statements instead.
Tell the instructing solicitor promptly so that an amendment can be considered, and correct anything that could mislead the court. If the error could lead to a claim against you, consider whether it is a circumstance to notify under your BMIF policy.
Usually yes, as a civil liability claim, because the BSB minimum terms contain no AI exclusion. Cover is subject to the policy terms, the deductible and the £500,000 minimum each and every claim limit. Regulatory fines are not covered.
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