TL;DR

Expert witnesses should start telling courts and instructing solicitors when they use AI, without waiting for a formal rule, Mrs Justice Joanna Smith told the Bond Solon Expert Witness Conference, the Law Society Gazette reported on 7 November. Experts whose evidence is shaped by undeclared AI can expect their reports “to be the subject of searching questions in cross-examination”, she warned.

A rule is coming, the risk is already here

The judge co-chaired the Civil Justice Council working group whose report on AI and court documents was published in late October. It recommended that experts make a declaration only where AI tools have generated or influenced the substantive content of a report, and that the requirement be built into the 2014 guidance on instructing experts in civil claims.

Her message to the conference was that the gap before that change is not a safe harbour. “Obviously, there is at the moment no requirement in the rules that that should be done,” she said, but experts who fail to declare “may find yourselves under cross-examination and potentially open to criticism”.

She sketched what a declaration might cover: the method used, confirmation that AI was appropriate for the purpose, and, exceptionally, the tool itself.

Duties unchanged

The keynote, given to hundreds of experts at Church House in Westminster, rested on a simple claim: AI does not alter an expert’s obligations. “The obligations of independence, objectivity, transparency and professional competence remain exactly the same,” she said.

The deeper risk, in her view, is “the erosion of independent judgment” if experts hand their opinions to an AI agent. The practical risks she listed were poor training on the tool, not understanding what it can do, and weak oversight. She advised experts to check at instruction whether AI use is permitted at all, for example because of intellectual property, data protection or regulatory limits, and to raise their intended use with instructing solicitors even when the instructions are silent.

What it means

In our view, this is court practice moving ahead of the rulebook. A senior judge who helped write the recommendation has told the profession, in public, how undeclared AI use is likely to be tested in the witness box. For UK expert practices, including engineering, medical, valuation and forensic accounting firms, the practical step is to record AI use in each report’s working file now, so the declaration can be made on request.