Mr Justice Fancourt recently handed down a titanic judgment in Duke of Sussex vs MGN Limited [2023] EWHC 3217 (Ch), AKA Prince Harry vs the Mirror Group. It clocks in at 450 pages and 198000 words. This is longer than most novels, and about a quarter of the length of the King James bible.
The judgment involves very little law. It is largely a fact finding exercise, covering hacking by the Mirror between 1996-2011. At trial the Duke sought to rely on 148 articles, but he was made to reduce it to a sample of 33 and the sample had to be agreed between the parties. This meant that, in fact, the sample that was presented to the court included trivial articles and articles that were out of date.
The judge also relied on the judgment in Gulati vs MGN, where Mr Justice Mann made findings that there was a widespread culture of phone hacking at Mirror Group.
Of the 33 articles in the Duke’s sample, the judge found 18 not proved. Many of these were dismissed because the Tort did not exist at the time of the article in question; others were dismissed because they were trivial. In the end, 15 articles were found to be the result of phone hacking, and Prince Harry was awarded £125,400 and aggravated damages of £15000.
So why am I explaining this background? In 1703, Chief Justice Holt said in Ashby vs White, that “it is a vain thing to imagine a right without a remedy”. A noble thought, but in 2023, with limited court resources, this is a luxury that cannot be afforded. The overriding objective means that it is unacceptable for a case to occupy a disproportionate amount of the court’s time.
But perhaps this could change. The Duke (or rather the Duke’s legal team) had to up submit a watered down version of his case, simply in order to make the case manageable. This demonstrates perfectly the advantages that legal practitioners could gain by having the use of such technology.
It is surely inherently unfair, and contrary to the aforementioned principle in Ashby vs White, that human capacity has created an artificial limit on what can be considered. So what if generative AI technology could allow both sides’ legal teams, and the judge reviewing the materials, to consider every fact and every document, without the case becoming impossibly unwieldy? Would this not mean a fairer system, and put legal teams in a better position than they could ever be from manual factual review?
An interesting question is, would the result of the case have been different if the entire set of articles were considered? It’s impossible to know, but any prestigious firm would wish to present the fullest and most thorough argument to the court, and clients will expect firms to do so.
AI products that allow analysis of large volumes of facts and documents will mean more successful cases, better representation and fewer missed facts. According to BAILII, Prince Harry’s was involved in four separate cases in 2023, occupying 39 days in court in 2023. It might be thought that if he had the benefit of AI, he could have presented more relevant facts, in fewer days.