November 14, 2023 | 1 minute read

The Business and Property Courts to be digitised and embrace AI

Stevens & Bolton LLP

Sir Geoffrey Vos used his Speech by the Master of the Rolls: Justice in the Digital Age to the Technology and Commercial Court to start a debate on how the digitisation of the justice system, which is already underway in civil, tribunal and family cases, could be extended to the B&PCs. Digitisation means the litigation process is undertaken end-to-end online. B&PC cases can be very complex, but Vos says this is why the B&PC digitisation process must make maximum use of AI, to process the mass of data in B&PC cases and to help identify the normally only few central legal and factual issues that need to be determined. This would help reduce delay and costs.

Vos also went on to consider how generative AI and large language models (LLMs - like ChatGPT) could change work in the B&PCs. LLMs trained solely on legal data will provide answers to legal questions in seconds, although they will always need human checking. Large volumes of complex data can be processed and summarised in seconds, saving many lawyer hours. Vos predicts that there will be fewer factual issues to be determined with increased use of distributed ledger technology (DLT) as more events will be recorded immutably on chain, and AI will make it easier to identify the remaining factual and legal issues. AI will also make it much easier to interrogate the data sets during disclosure, and could be used to predict case outcomes.

Vos also sees the types of disputes in the B&PC’s changing in the digital age. Courts will be resolving issues about digital assets, smart contracts and DLT, and determining responsibility for error in the context of automated rather than human decision-making, where liability will be apportioned between programmers and technology producers. There will be greater use of electronic trade documentation with digital payment mechanisms and blockchain of digital technology, because of The Electronic Trade Documents Act 2023 which allows for all trade documents to be in digital form. New liability issues will arise for accidents caused by self-driving cars, trains and planes. A brave new technological world will be arriving soon at court.

What does digitisation of B&PC cases mean in this context? This is something that, thus far, has not been much debated. I want to emphasise that anything I say this afternoon is intended only to start, not to foreclose, that debate. I care as much as any of you about the quality of justice provided in the Business and Property Courts and would do nothing to jeopardise it. I do, however, think that the B&PCs of England and Wales should not lag behind. They should lead the revolution in digital justice for commercial cases in courts and even in commercial arbitration. The B&PCs must demonstrate that their international reputation for commercial dispute resolution is well-deserved and can be carried forward and enhanced in the digital age.

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