AI in High Court Documents: Key Points for Experts in Clinical Negligence Claims

Practice Direction HC 142, issued by the President of the High Court, Mr Justice David Barniville on 29th July 2026, will apply from 1st September 2026. It sets out the High Court’s expectations for the responsible use of Generative AI (“GenAI”) in civil proceedings, including pleadings, submissions, affidavits, witness statements and expert reports.

The direction follows recent Court of Appeal guidance in Guerin v O’Doherty [2026] IECA 48, where AI-generated submissions included non-existent authorities. The message arising from this Practice Direction is that GenAI may assist litigation work, but it does not dilute professional responsibility, evidential reliability or the duty owed to the Court.

Implications for Clinical Negligence Claims

Expert reports are relied upon by the parties when assessing whether the standard of care has been met in clinical negligence proceedings. It is of course necessary for a patient to hold an expert report supporting a claim in negligence against a healthcare provider before such proceedings are progressed. Expert reports are also necessary when assessing the nature and extent of the injuries caused by the alleged negligence and how to quantify such injuries to include the care required and the extent of the loss of earnings suffered over a lifetime.

Practice Direction HC 142 specifically addresses expert reports at paragraphs 29 to 31.

Core Obligations for Experts

• Own opinions/reasoning: The expert, at the start of their report, must include the following declaration:
  
  “I declare that, save as otherwise expressly stated, Generative Artificial Intelligence has not been used for the purposes of generating the substantive content of this report which reflects my own opinions, knowledge and evidence."

• Disclosure: Where GenAI Tools have been used in the preparation of an expert report, the expert must disclose the nature and extent of that use to the extent necessary to enable the Court and the parties to properly assess the reliability, independence and evidential weight of the opinion expressed.
• Material use: The disclosure required shall include any material use of GenAI Tools in drafting, analysing, interpreting or generating substantive content for the report.

Verification Requirement

• Verification: Any AI-assisted material, including authorities, literature, guidelines and factual assertions, must be independently verified by the expert. Any limitation on the ability to do so must be disclosed to the Court.
• Responsibility: The Practice Direction highlights the importance of continuing human responsibility i.e. that the expert remains personally responsible for the accuracy, independence and reliability of the report.
  

Risks of GenAI

The Practice Direction expressly acknowledges common GenAI risks such as inaccurate outputs, fabricated references, misleading summaries and biased analysis. In the clinical context, these risks may extend to non-existent medical journal articles, misstated clinical guidelines or incorrect interpretation of records.

Confidentiality and privilege also require careful handling. The Practice Direction specifically notes that information entered into a GenAI Tool may be retained, processed or disclosed to other people in ways that are not apparent to the user, even if that is not intended. Entering information into a confidential GenAI Tool may breach obligations if outputs from the Tool are later used by other persons and/or for different purposes.

Practical Steps when Instructing Experts

• Address GenAI and the requirement for appropriate and responsible use within the letter of instruction.
• Ensure that the expert is aware of the requirement to include a declaration relating to the use of GenAI in their report in the following terms:

“I declare that, save as otherwise expressly stated, Generative Artificial Intelligence has not been used for the purposes of generating the substantive content of this report which reflects my own opinions, knowledge and evidence."

• Ask the expert to disclose in their report reference to any GenAI Tools used in the preparation of the report by reference to the nature and extent of that use.
• Ensure the expert is aware of their verification responsibilities.

Potential Sanctions for Non-Compliance

• Adverse costs orders — The expert's instructing party may be penalised in costs.
• Rejection of documents — The expert report may be refused by the Court.
• Striking out of a claim or defence — In serious cases, the substantive proceedings could be struck out.
• Personal cost orders against lawyers — The instructing solicitor or counsel may face personal liability in costs.
• Professional referral — Referral of the lawyer to the Legal Services Regulatory Authority or their professional body.

Key Takeaways

• GenAI use should be considered at the point of instruction, not after the report is finalised.
• Material GenAI use in expert reports should be disclosed clearly.
• GenAI cannot replace the expert’s independent clinical judgment.
• Verification is essential, particularly where GenAI has assisted with research or drafting.
• Non-compliance may lead to procedural, evidential and costs consequences.

Conclusion

Practice Direction HC 142 marks a significant procedural development in the treatment of GenAI in the context of High Court litigation. It is important to note that Practice Direction HC 142 does not prohibit the use of GenAI in litigation rather, it requires transparency, supervision and accountability. For clinical negligence practitioners, the safest approach is to build GenAI compliance into the expert instruction process from the outset and to ensure that experts are fully aware of their obligations under this new Practice Direction.

For more information, please contact Eoghain McNicholas or another member of the Healthcare Team.

*This information is for guidance purposes only and does not constitute, nor should be regarded as, a substitute for taking legal advice that is tailored to your circumstances.