The EAT provides guidance on the use of generative AI by litigants in person

Background

In Hancox v Sutherland and others, an employment tribunal struck out the claimant's claims against four individuals. It found that his LinkedIn campaign amounted to scandalous, unreasonable and vexatious conduct of the proceedings and that a fair trial was no longer possible. He appealed.

The appeal was initially rejected at the EAT's paper sift. A preliminary hearing was then arranged, with both sides taking part, to decide whether there was an arguable ground of appeal that should go forward to a full hearing. For that hearing, the claimant, who was acting in person, submitted a skeleton argument created using ChatGPT. It ran to 300 pages and almost 132,000 words. EAT guidance says skeleton arguments should generally be between five and 15 pages.

In his covering email, the claimant acknowledged that the judge could not read the document in full before the hearing and asked the respondents to identify any errors. At the hearing, he accepted that much of it lacked credibility. It was not relied upon.

The EAT decided that one ground of appeal was reasonably arguable: whether the claimant had fair notice that the strike-out application would be determined and a fair opportunity to respond. That ground will proceed to a full hearing. The EAT did not decide whether the strike-out was wrong.

Guidance on AI

The EAT recognised that AI can help people who do not have legal representation. It also warned that AI-generated material may be inaccurate, irrelevant or excessively long, and may include invented legal authorities.

Anyone using AI to prepare documents for the EAT must check them as thoroughly as they reasonably can. Documents must comply with procedural rules, accurately reflect the facts, evidence and law, and focus on the relevant arguments without undue repetition. Litigants cannot submit unchecked output or expect the opposing party to find its errors. The EAT said that concerns about inadequate checking may lead to judicial enquiries or sanctions.

Learning points for employers

The case illustrates the value of legal representation in identifying the strongest grounds of appeal, preparing focused submissions and meeting procedural requirements. At the preliminary hearing, the claimant received assistance from a lawyer through the Employment Law Appeal Advice Scheme and pursued one arguable ground; his 300-page AI-generated argument was not relied upon.

AI can assist with preparing litigation documents, but it cannot replace legal judgement. Solicitors and counsel remain responsible for checking any AI-assisted work they submit, including its accuracy, relevance and compliance with the tribunal's rules.

For more information or advice, please get in touch with Lucy Cinnamond in our Employment team.