A High Court judge has issued a stern warning on the use of artificial intelligence – telling expert witnesses that a solicitor who insisted on an AI-generated expert report breached their duty.

The latest Bond Solon Expert Witness Survey, produced in conjunction with the Gazette, reveals that an expert witness was asked by a solicitor to accept an instruction where the solicitor insisted on providing them with a draft AI-generated expert report for the case.

Mr Justice Waksman, head of the Construction and Technology Court, told the Bond Solon Expert Witness Conference last Friday: 'That to my mind is a gross breach of duty on the part of the solicitor.'

Waksman was troubled by another survey finding that14% of experts said they were willing to accept instructions on the same basis. 'I cannot see how that can be appropriate conduct on the part of the expert, even if they’re doing it to avoid a row with the solicitor and they intend to dispose of the draft report soon afterwards,' Waksman said.

Waksman said the report was timely, as judges were issued with updated AI guidance last week.

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The conference heard that judges are not prohibited from using AI and have their own private version of ChatGPT 365. The prompts and information fed into the model are not publicly accessible. ‘If we wanted to use AI to summarise expert reports to introduce ourselves to expert issues in the case, there is no problem about leakage of information,’ Waksman said.

Judges do not have a duty to disclose the use of AI, as it is deemed analogous to using a judicial assistant. But ‘the fact remains the ultimate product - the judgment - must be that of the judge alone', Waksman said.

The senior judge warned against using AI for legal research or analysis, highlighting the danger of ‘hallucinations, which have already occurred where fake legal precedents have been cited in some cases’. Experts should also 'steer clear’ of using AI ‘to answer the questions that is your job to answer. As soon as you do that, you compromise your independence’.

Read a full report on the survey results in the Gazette's digital magazine