Professional Misconduct and AI: Insights from Ayinde v London Borough of Haringey

The Administrative Court has recently handed down judgment in R (on the application of Ayinde) v London Borough of Haringey [2025] EWHC 1040 (Admin): an interesting decision on a wasted costs application, in which a party's solicitors and barrister were found to have cited fake authorities in their client's pleadings.  It was submitted by the applicant that the fake citations arose from the unchecked use of artificial intelligence (AI) by the legal team.  In the absence of relevant evidence, Mr Justice Ritchie declined to make a finding as to whether that had occurred, but commented, nonetheless, on the professional consequences of such conduct. We summarise the decision, and discuss some practical implications and related developments.

BACKGROUND

The underlying case was a judicial review of a decision by a Local Council not to assess the Claimant for emergency housing.  The parties reached agreement on the outcome of the case, and so Ritchie J's task was limited to determining costs, including a wasted costs application made against the Claimant's solicitors and barrister, seeking an order that they compensate the Council for costs incurred by their improper conduct.

The alleged improper conduct related to the use of fake case references in the Claimant's pleadings. The Council were unable to locate five cases which had been cited in those pleadings.  They wrote to the Claimant's solicitors to inform them of this, suggested that the cases were fake, and threatened a wasted costs application.

The Claimant's solicitors subsequently wrote to the Council in a letter which Ritchie J described as "truly remarkable."  They said that the citation issues could "easily be explained," but then declined to provide any such explanation.  Whilst they apologised for the issue, they said that it was "improper to barter our client's legal position for cosmetic errors" – a description which Ritchie J described as "grossly unprofessional."

At the costs hearing, the barrister sought to explain how these "minor citation errors" (as she described them) arose.  She said that she kept a box of relevant authorities, and a list of them, and that she simply dropped the cases from her list into the pleadings.  This attempt to explain the position did not find favour with Ritchie J, who said this:

"If she herself had put together, through research, a list of cases and they were photocopied in a box, this case could not have been one of them because it does not exist.  Secondly, if she had written a table of cases and the ratio of each case, this could not have been in that table because it does not exist. Thirdly, if she had dropped it into an important court pleading, for which she bears professional responsibility because she puts her name on it, she should not have been making the submission to a High Court Judge that this case actually ever existed, because it does not exist."

The question for the judge was whether to grant a wasted costs order in respect of the time spent by the Council in relation to the fake cases.

Practice Direction 46 provides that it is appropriate to make a wasted costs order only if:

"(a) the legal representative has acted improperly, unreasonably or negligently;

(b) the legal representative’s conduct has caused a party to incur unnecessary costs, or has meant that costs incurred by a party prior to the improper, unreasonable or negligent act or omission have been wasted;

(c) it is just in all the circumstances to order the legal representative to compensate that party for the whole or part of those costs."

As to part (a), Ritchie J held that the barrister's behaviour was improper, unreasonable and negligent, and "qualifies quite clearly as professional misconduct."  In this respect, the Council submitted that the barrister may have used AI to assist in preparing the pleadings.  Ritchie J declined to make a finding as to how the cases came to be included in the pleadings, but did find that the barrister "intentionally put these cases into her [pleadings], not caring whether they existed or not." 

Had the barrister used AI without verifying the information which it had produced, Ritchie J considered that, on the balance of probabilities, this would have been negligent for the purposes of part (a).

He also found that part (a) was established against the solicitors on the basis that it is "the responsibility of the legal team, including the solicitors, to see that the [pleadings] are correct."

As to part (b), Ritchie J found that the deployment of fake cases, and attempts by the solicitors to deflect from the issue, had caused the Council to incur wasted costs.

Finally, as to part (c), Ritchie J described the conduct of the barrister and solicitors as "appalling professional misbehaviour" (including by the solicitors trying to finesse the problem into one of "minor citation errors") and that justice required him to make a wasted costs order.

COMMENT

The barrister and solicitors were each required to pay the Council £2,000 in wasted costs.  Perhaps more significantly, cases of this nature will inevitably give rise to reputational implications, and raise at least a possibility of regulatory action.  Ritchie J required the Council to send a transcript of the judgment to the Bar Standards Board (BSB) and Solicitors Regulation Authority (SRA).  The judgment also stated that, upon discovering that the citations relied upon did not exist, the solicitor and barrister should each have reported themselves to the SRA and the BSB, respectively.  

Furthermore, the President of the King's Bench Division has since listed a hearing to consider what steps the Court should take, which the President has said may include contempt of court proceedings if it can be shown that the relevant conduct "does or may amount to an interference with the due administration of justice in High Court proceedings."

Ritchie J did not make a finding as to whether AI had been used in preparing the pleadings: the wasted costs application required him only to go as far as to find that fake citations had been used and, presumably, the process whereby that happened will be a matter for the regulators to investigate.  

We expect such cases to become increasingly common as the deployment of AI expands, and becomes more prevalent in legal practitioners' work.  In his recent lecture to the LawtechUK’s Generative AI event, the Master of the Rolls exhorted lawyers to embrace the use of AI, but also anticipated the rise of such satellite litigation arising from its use.  In addition:

• A similar issue arose in proceedings before the Administrative Court, in a judgment handed down last week: Bandla v SRA [2025] EWHC 1167 (Admin).  In that case – a statutory appeal of a decision of the Solicitors Disciplinary Tribunal – the Appellant, a former practising solicitor, included fake authorities in his Grounds of Appeal.  Whilst the Appellant denied that this arose from the use of AI, and whilst Mr Justice Fordham did not make a factual finding in this respect, he nonetheless struck out the Grounds of Appeal as an abuse of process, citing the need to "take decisive action to protect the integrity of [the Court's] processes against any citation of fake authority."
• On 14 April 2025, HMCTS issued updated guidance to Judicial Office Holders on the use of AI.  This states that legal representatives are "responsible for the material they put before the court/tribunal and have a professional obligation to ensure it is accurate and appropriate", and that it may be necessary for judges to enquire as to what checks have been undertaken to verify information obtained via AI.

Interestingly, the SRA has recently authorised the first law firm to provide its services via AI.  That firm specialises in debt recovery claims, and the SRA says that the firm has sought to mitigate the risk of incorrect AI-produced material being placed before the court, by prohibiting its system from referring to case law, which the SRA considers to be a "a high-risk area for large language model machine learning."

In this case, it is notable that Ritchie J found that the solicitors also had a duty to ensure the accuracy of the pleadings.  In principle, that seems uncontroversial, but it seems to us that the limits to that duty might be explored in future cases.  In complex matters in which a senior, specialist and reputable barrister has been instructed, it might be said that instructing solicitors who are not specialised in the relevant area of law are entitled to assume that the barrister has not fabricated authorities.