Judges should use the costs regime to deter litigants in person (LiPs) from irresponsibly flooding the courts with ‘AI slop’, a former lord chancellor has suggested.
Sir Robert Buckland KC told the Costs Law Reports conference last week that AI has spawned a ‘profound change in the economics of litigation’, at the expense of the justice system.
He said: ‘AI slop [involves] the production of large quantities of superficially impressive, but unnecessary legal material. A litigant in person can now take a grievance, and ask AI to turn it into a pleading, then witness statements, a skeleton argument, a list of authorities… The machine never gets tired. The litigant does not become embarrassed by the size of the document, and unlike a human lawyer, the machine has no instinctive sense that a particular argument is not worth making… “every one of their geese is a swan”.’
This creates a new costs problem, he said. ‘The person generating the materials may incur virtually no marginal cost. But the opponent does, and so does the court, the taxpayer, and most definitely the justice system. That’s a profound change in the economics of litigation. Before, prolixity had a natural break. Not just an impatient judge, but the fact that someone had to pay the lawyer to produce submissions. AI removed that break, and I think the costs jurisdiction can and should provide another.’
Buckland said he did not believe there was any need for special AI costs rules, as the court has powers under CPR 44 to make appropriate costs orders for unreasonable conduct. However, it should be made clear that ‘AI-generated conduct is still conduct within the meaning of those rules.’
Buckland stressed that LiPs should not be treated as ‘second class citizens’, as many simply cannot afford legal advice. ‘So the answer should not be, “LIP + AI = costs sanction”. That would be unfair and unworkable,’ he said.
He added: ‘There needs to be a distinction between uninformed use and irresponsible use. A person who genuinely believes an AI-generated proposition to be right may need some education. A person who is told an authority doesn’t exist and continues to rely on it is behaving very differently.
‘Similarly, a litigant who produces a long document because they genuinely can’t understand what the court requires is not in the same position as one who deliberately floods the court with irrelevant material after having been warned to stop.
‘The court needs discretion, and discretion requires the willingness to use it. Therefore I would favour a relatively simple development – and I’m sure many judges would [want] the same. At the outset of litigation, particularly where an [LiP] is involved, the court could make it clear that AI may be used as an aid, but responsibility for accuracy remains with the person filing the document; that authorities must be verified and factual assertions must be checked, documents must be proportionate, and irrelevant or repetitive material should not be filed; and a warning that unreasonable costs generated by the use of AI may be taken into account in determining the amount of those costs. That would put litigants on notice, and it would later give the costs judge a principled basis for acting in due course.’
Buckland added professional lawyers cannot claim to be unaware of the dangers of relying on AI. ‘If you put it before the court, you own it,’ he said. ‘The fact that ChapGPT, Claude, Gemini or some other system generated it is not a defence… We don’t need a new rule for every piece of software, but we do need clear statements of responsibility.’
Buckland was lord chancellor from 2019 – 2021 under Boris Johnson and is now a practising barrister at Foundry Chambers and a consultant at DAC Beachcroft.
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