Background of the cases
In both cases, Gen AI was used to assist in the drafting of submissions. However, both the counsel and self-represented litigant failed to verify the Gen AI information used resulting in the citation of cases which did not exist.
In Tajudin, a Singapore case, the claimant's counsel filed written submissions which cited a case that purported to support the claimant's proposition on moneylending. However, this case was missing from the claimant's authorities bundle, and it subsequently transpired that the case was fictitious.
In Samuel Johnson, a case from the Cayman Islands Court of Appeal, the appellant who was a self-representing litigant, cited two non-existent cases in his written submissions. When asked by the Court to produce the cases, he was unable to do so and confirmed to the Court that he had used Gen AI to prepare his submissions and the cases were cited by Gen AI.
Key issues and findings
In Tajudin, the defendant was unsuccessful and liable for the claimant's costs of the application. However, the Court had to consider whether to make a separate personal costs order against the claimant's counsel to compensate the defendant for costs of and incidental to the citation of the fictitious authority to the Court.
In deciding whether an advocate and solicitor has acted improperly, unreasonably or negligently in his citation of a fictitious Gen AI authority, the Court considered the standard of conduct expected of advocates and solicitors as set out in the Gen AI Guide, which governs the use of Gen AI tools in the preparation of documents for court proceedings:
- Singapore courts do not prohibit the use of Gen AI tools as an aid in legal research, but the duties of advocates and solicitors in ensuring that materials placed before the Court exist and are accurate are non-delegable.
- Independent human verification of Gen AI output is required before documents are placed before the Court.
- An advocate and solicitor has duties to act with reasonable diligence and competence, not to knowingly mislead or attempt to mislead the Court when conducting court proceedings, not to advance any proposition that he/she knows or ought reasonably to know is contrary to the law, to disclose to the Court any procedural irregularity of which he/she is aware and to exercise proper supervision over the staff working under him/her.
The Court found that the defendant had engaged in improper conduct in citing the fictitious authority, and to safeguard public trust and confidence in the justice system and deter similar conduct by other advocates and solicitors, decided to impose a personal costs order against the claimant's counsel.
In Samuel Johnson, the Court of Appeal considered whether the duties of lawyers to verify the accuracy of their legal research conducted by Gen AI apply to self-represented litigants (the appellant in this case).
The Court referred to the issues arising from the use of Gen AI, as discussed in the English case, In R (oao Ayinde) v London Borough of Haringey [2025] EWHC 1383 (Admin), which stated that: “In the context of legal research, the risks of using artificial intelligence are now well known. Freely available generative artificial intelligence tools, trained on a large language model such as ChatGPT are not capable of conducting reliable legal research. Such tools can produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may turn out to be entirely incorrect. The responses may make confident assertions that are simply untrue. They may cite sources that do not exist. They may purport to quote passages from a genuine source that do not appear in that source".
The Court was of the view that litigants-in-person have a duty not to mislead the Courts by citing fabricated authorities, in particular, where the appellant was appearing without notice and where a duty of candour to the Court arises in any event. The breach was even more egregious because the appellant did not immediately acknowledge the use of GenAI in preparing the documents. However given the appellant's frank if belated acknowledgement, the Court did not consider it was necessary to take any action against him.
The Court cautioned against the risks associated with the use of Gen AI for legal research, and the potential consequences of putting fabricated citations before the Court. Consequences include initiating proceedings for contempt or referral for criminal investigation, cost consequences and the possibility of the case being stayed or struck out.
While the Court does not prohibit the use of Gen AI in the preparation of documents, all statements, submissions, skeletons or other documents from parties to Court proceedings which use Gen AI and that are to be submitted to the courts must identify its use and the party concerned must take personal responsibility for verifying the references.
Impact on the Offshore jurisdictions
It goes without saying that advocates and solicitors must exercise due diligence to ensure that all authorities cited exist and have been exhibited. As stated in Tajudin, "As members of a noble and honourable profession, advocates and solicitors are held to the highest standard of conduct. These standards are not mere aspirations – they comprise legally binding obligations put in place to safeguard the core values of the legal profession and preserve a public trust and confidence in the legal profession and the administration of justice".
With the developing landscape, frameworks need to be strengthened or expanded going forward, the Gen AI guide in Singapore which sets out general principles governing the use of AI in court proceedings is a welcome guide for practitioners in all jurisdictions and it would be beneficial to see a similar framework being established in the offshore jurisdictions. In circumstances where AI will no doubt be utilised by lawyers in the Cayman Islands going forward, it will be interesting to monitor the extent to which the direction by the Court of Appeal that parties should identify the use of Gen AI is followed. In the meantime, Tajudin and Samuel Johnson both serve as a solemn reminder that every advocate and solicitor bears a personal responsibility to comply with his or her professional duties.
