A senior English judge has urged expert witnesses to disclose AI use that generates or influences the substance of their evidence—even before proposed disclosure rules are adopted.
In a newly published speech, Joanna Smith J said the Civil Justice Council has recommended an AI-specific declaration where a tool forms part of an expert’s methodology or substantive analysis. The disclosure should provide enough information for the court and opposing party to scrutinise the evidence, potentially including the methodology and, where necessary, the tool used. Routine administrative assistance would generally fall outside the proposal.
The recommendation is not yet law. Smith J nevertheless advised experts to discuss intended AI use with instructing solicitors and warned that inadequate disclosure could expose their reports to searching cross-examination.
The significance extends beyond hallucinated citations. AI may subtly shape an expert’s selection, organisation and interpretation of evidence without producing an obviously false statement. Effective scrutiny therefore requires records showing what the system did, how its output was validated and whether the stated opinions genuinely remain the expert’s own.
Australian litigators should treat this as a practical warning. Instructions to experts should address permitted tools, confidentiality, record-keeping, reproducibility and disclosure before work begins—not after an AI-assisted methodology is challenged.
Source: Joanna Smith J, Artificial Intelligence and Expert Evidence.
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