Inference and Evidence: AI’s Place in Civil Litigation – an article by Jake Newell

21 July 2025

Inference and Evidence: AI’s Place in Civil Litigation

Artificial intelligence (‘AI’) is increasingly becoming integrated into daily life, so it is important to pause and consider the potential difficulties it can pose within the context of litigation. An issue of growing concern is the utilisation of artificial intelligence to produce fake documents. Having encountered the issue of alleged fake documents in a case, Jake Newell provides a brief insight into the following two areas:

1. The risks of using AI in litigation generally.
2. When the use of AI is abused: how to challenge fake, AI generated documents within litigation.

The Risks of AI

AI, when used responsibly, is a useful tool which can produce a wealth of information in little time. However, it is by no means perfect. For example, AI can incorrectly analyse a case by making omissions of potential heads of claim or limitations to arguments. A further risk is the use of incorrect or even fabricated jurisprudence. Additionally, as will be covered below, AI could be used in a cynical way to unfairly succeed at trial. In each situation, failing to responsibly utilise AI can lead to: ineffective hearings, increased legal costs, and wasting the Court’s time. Therefore, it will still be necessary to ensure the accuracy of the research or documents produced by AI.

AI in Civil Procedure

Abusing AI is a contemporary issue, and we are yet to see any amendments to the Civil Procedure Rules (‘CPR’) to provide a framework to specifically address these challenges. However, there is one important provision (albeit broad and general in nature) which may assist: CPR 32.19. It reads as follows:

• A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

• A notice to prove a document must be served –

1. by the latest date for serving witness statements; or
2. within 7 days of disclosure of the document, whichever is later.

A document is deemed to be authentic unless a notice under CPR 32.19 is served. A failure to provide such a notice could be catastrophic for litigation purposes where it is mistakenly taken as genuine evidence: it is much harder to backtrack and challenge a document’s authenticity with the same level of vigour. In effect, a party who fails to serve such a notice is left hamstrung. It is therefore imperative that after disclosure of evidence under Part 31, a prompt and thorough review is undertaken of that evidence.

Observations

1. AI is presently a Pandora’s Box. It may be that it presents a host of advantages for litigation when used responsibly. However, the inverse can also be correct: irresponsible use of AI can threaten the reliability of evidence more broadly (by unfairly harming the other side’s genuine prospects) and have disastrous implications for litigation generally (including retrials being ordered, along with the costs and resources associated of another trial). Once allowed in, AI’s role in civil litigation will be difficult to undo.
2. There is a risk that even the most vigilant and attentive can be deceived by fabricated documents. Therefore, extreme care is required.
3. By serving a notice to prove under CPR 32.19, parties can take steps to deter others from relying on falsified or altered documents. To compound this, the Court is also put on notice and may ask questions of its own accord, thus providing an additional layer of protection.
4. The latest date by which a notice under CPR 32.19 can be served is the date of primary witness statements, not supplemental ones (see: Invest Bank PSC v El-Husseini [2024] EWHC 1804 (Comm) at [7]; this is a decision on whether to grant relief from sanctions and has not been touched in any subsequent appeal).
5. Following Redstone Mortgages Ltd v B Legal Ltd [2014] EWHC 3390 (Ch) at [56] – [58], a party which receives a notice to prove under CPR 32.19 “must lead apparently credible evidence of sufficient weight that the document is what it purports to be” and “the question is therefore whether any evidence as to the provenance of the document has been produced, and if it has then whether (although not countered by any evidence to the contrary) such evidence is on its face so unsatisfactory as to be incapable of belief.”
6. It should be noted that if seeking to argue forgery, that would still need to be pleaded as such and is an entirely different point to CPR 32.19 (see: Kang v Freshacre Properties Ltd [2025] EWHC 487 (Ch) at [18] – [21] which builds on Redstone Mortgages Ltd v B Legal Ltd at [58]). That remains a distinct issue.
7. It is not entirely clear how one can “prove” the authenticity of documents due to the lack of guidance. It is possible that expert evidence may be required (such as a report and/or oral evidence at trial) to consider the allegations. The costs of engaging an expert are likely to be significant, and it is likely to be a time consuming process thus elongating the litigation process.
8. At the time of writing, it is unclear what the consequences are for a party that is found to be relying on a document which it knows to be fake. Whilst there may be costs implications, there may be other avenues (such as contempt of court) which could be utilised.

A further read on the subject of CPR 32.19 can be found on the Natural and Artificial Intelligence in Law blog, here.

If you have any questions regarding the above, would like Jake to give advice, or would like to instruct Jake please contact his clerks here.

Please note: the above explanation does not constitute legal advice.

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