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AI will change principles of common law as well as its practice – MR

By Michael Cross >>

(12 March 2024)

Artificial intelligence may affect the foundational principles of common law as it transforms its practice, the master of the rolls said yesterday. In perhaps his most upbeat assessment of the technology yet, Sir Geoffrey Vos told Manchester Law Society that AI may affect the principles of specialisms ranging from company and insolvency law, to contract and tort ‘and even criminal law’. 

On a practical level, its advantages in some areas will be such that lawyers may be unable to show reasonable skill and diligence if they fail to use the new tools. The judiciary will not be exempt: ‘It may not be long before parties will be asking why routine decisions cannot be made more quickly, and subject to a right of appeal to a human judge, by a machine.’

In a talk illustrated with AI-generated images, Sir Geoffrey stressed that ‘there is nothing scary’ about AI – it is simply a tool that has been around for many years. ‘You use it happily every time you pick up your smart phone.’ Fears of inappropriate use are not really different to those applying to other innovations: ‘Cars, aeroplanes, industrial machinery, oil, mining and almost every other technological innovation can be very dangerous to people, and even to humanity itself, if misused.’

The master of the rolls cited experiments he had conducted with generative AI products such as ChatGPT, Google Gemini and Microsoft CoPilot. The software particularly shines in drafting contracts, he said. ‘I have been truly amazed at how quickly they can be produced.’ While such drafts need human checking and amending, he said the process takes a fraction of the time it would take a human lawyer to draft a contract from scratch. 

On the preparation of legal advice and court submissions, Vos conceded that early attempts ‘came a cropper’ because of the tendency of generative AI to ‘hallucinate’. However he predicted that specialist systems trained solely on legal data – for example by scraping the databases of court judgments – would prove more accurate than public large language models. 

Against this background, ‘using AI is unlikely to be optional,’ he said. ‘If generative AI can draft a perfectly serviceable contract that can be quickly amended, checked and used, clients will not want to pay a lawyer to draft one instead.’

Meanwhile, the rapid advance of AI ‘may affect the foundational principles of our common law,’ he said. ‘There may, for example, need to be reconsideration of the implication of terms, the regulations concerning unfair contract terms, and a range of other legal and regulatory provisions. There may even need to be a re-evaluation of the nature of the duty of care.’

As for judges, he noted that the senior judiciary would not have issued its ‘somewhat cautious judicial AI guidance’ last year if ‘we had not thought that judges were as likely as any other group to be assisted by AI tools’. 

‘Linking the development to his vision of an online civil dispute resolution ‘funnel’, Vos concluded: ‘AI has great potential within the digital justice system which promises to provide quicker, cheaper and more efficient ways to resolve the millions of disputes that arise in British society every year.’

(Courtesy: The Law Society Gazette)