We spoke with former High Court Judge Dr Victoria McCloud, who says without the guidance, the UK faces a “storm of litigation”.
The International Legal Technology Association (ILTA) has published a new Generative AI Guide, offering guidance to litigators in England and Wales as to how the use of GenAI should be approached in disclosure in the Business and Property courts.
Co-chaired by Fiona Campbell (Fieldfisher) and Tom Whitaker (Burges Salmon), with contributions from David Wilkins (Norton Rose Fulbright), James MacGregor (Ethical eDiscovery), and DAC Beachcroft’s Jonathan Howell, Jamie Tomlinson and Imogen Jones, the new guidance builds on an Active Learning guide submitted to the Master of the Rolls in 2024—currently under review.
Both documents aim to plug a critical gap in Practice Direction 57AD, which sets out the rules of disclosure of evidence but does not provide for disclosure of a party’s use of generative AI.
Speaking to Legal IT Insider at Legaltech Hub’s London conference, Dr Victoria McCloud, a former High Court Judge, author and legal consultant on litigation strategy, said: “It is well known that I support the ILTA guide on Adaptive Learning in legal document processing. Without the guidance the UK faces a storm of litigation, soon, where parties to cases make use of whatever “AI” system they choose for the process. Those systems are proprietary and the way they work is unlikely to be disclosed. Different systems can introduce different performance and bias to one side or the other. This will spark costly and complex legal disputes. The Guide sets out technical guidance based on a extensive consultation in the industry, on key foundational ‘ground rules’ to avoid that state of affairs. It is to be hoped that the Master of the Rolls will move forward with its formal adoption.”
“GenAI brings real potential—but also real risk—to legal disclosure,” said Campbell. “The validation tools developed for Active Learning, like elusion testing and precision/recall, can be applied to GenAI outputs. That’s why it makes sense to treat this guidance as an addendum, not a standalone.”
Speaking on a panel at the conference, Campbell said: “Practice Direction 57 allows for the use of TAR but because the legislation has remained stagnant while GenAI developed in the interim, it hasn’t addressed that lacuna. ILTA and a number of practitioners have drafted a GenAI protocol that will be open for comment in the coming weeks.”
The GenAI Addendum covers:
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Appropriate use cases for GenAI in disclosure
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Best practices for prompt design and oversight
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Validation techniques and technical safeguards
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Integration with Active Learning workflows
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Recommendations on transparency and documentation
James MacGregor, chair of ILTA’s Litigation SIG and co-author of the original guide, said in a statement: “These companion documents deliver a consistent, court-aligned roadmap for tech-assisted review (TAR). Standardising practices helps reduce case-by-case wrangling over process—and cost.”
The guide will be officially launched on 6 May 2025 at an ILTA event hosted by Fieldfisher in London, featuring a panel of its authors. The draft will then be open for industry feedback until the end of June, with final publication expected in September 2025.