The Dekagram: 20th January 2025

Articles

20/01/2025

This week we bring you a further example of the dangers associated with the use of artificial intelligence in litigation, without the tempering effect of any checks or balances. As more and more of these example come to light, we can expect the courts to crack down with increased firmness on the guilty parties. We have been warned: AI is a useful tool, but it is only that. It is not a substitute for flesh and blood lawyers. Happily for us all. We also bring to your attention another recent case on service out of the jurisdiction, on this occasion involving an application which (unusually, in our experience) failed on the merits test.

Using AI: Another Cautionary Tale

In the last few years, there have been an increasing number of instances where litigants have attempted to rely on authorities generated by artificial intelligence systems such as ChatGPT.

Not all of these involve litigants in person: in the 2023 US case of Mata v Avianca Inc advocates sought to rely on face cases from ChatGPT. These cases had “some traits that are superficially consistent with actual judicial decisions” but had “stylistic and reasoning flaws that do not generally appear in decisions issued by United States Courts of Appeals”.  UK newspapers later reported that US authorities had fined the two lawyers and their firm for submitting fake citations. 

At the end of 2023, the First-tier Tribunal (Tax Chamber) gave judgment in Harber v The Commissioners for His Majesty’s Revenue and Customs [2023] UKFTT 01007 (TC). In that case, the claimant appealed a tax penalty, contending she had a ‘reasonable excuse’ for failing to notify of a liability to pay capital gains tax. In her submissions, she relied on nine alleged decisions of the FTT, where claimants had been successful in similar circumstances. None of these were genuine: they had all been created by A.I. This was evident from the use of American spelling (“favor”); identical language in the various ‘authorities’; and (most importantly) the fact that none of these ‘cases’ were available on any publicly-available database of FTT decisions. The FTT found that the claimant had not intentionally submitted fake cases to them, but noted that much significant harm flows from submitting bogus authorities, including waste of time and resources, potential reputational damage to the judges and courts cited, and cynicism about the legal profession and judicial system.

Last week Kerr J gave judgment in Olsen Finansiel Stabilitet A/S [2025] EWHC 42 (KB): an appeal against Master Cook’s decision to register a Danish judgment for enforcement in this jurisdiction. The appeal failed, but the respondent had a Pyrrhic victory because the judgment could no longer be enforced, having become time-barred at midnight on the date of Master Cook’s decision. One of the authorities relied on by the appellants was a two-page summary of ‘Flynn v Breitenbach [2020] EWCA Civ 1336’. The style was that of “a lawyer familiar with the Judgments Regulation, but whose first language is not English”. The judge considered “it would be difficult to accept that the author was unaware the case was inauthentic”, and the respondent noted that the summary “stood out from the other cases in the authorities bundle”.  On investigation by the parties (and the judge), it was found that the case simply did not exist.

The judge considered that the appellants may have committed a contempt of court by citing a fake authority, and determined on his own initiative whether contempt proceedings should be brought (cf CPR 81.6). However, the judge “narrowly and somewhat reluctantly” decided not to cause a summons for contempt to be issued: he did not consider it likely that a judge could be sure (to the criminal standard) that the appellants knew the summary was fake. The appellants had, otherwise, behaved quite properly and had gained no advantage from the bogus authority. The court would consider the point when it came to costs.

This should be a real wake-up call for litigants about the increasing citation of bogus authorities. It is also a reminder of the strong powers that the court has when a party seeks deliberately to mislead. Contempt proceedings may be the most significant of these; but is certainly not the only possibility. Those relying on bogus authorities may find their cases struck out for abuse of process or for obstructing the just disposal of proceedings, with (if a claimant) a resulting disapplication of QOWCS.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

Service outside the Jurisdiction: an Appellate Authority

In the recent case of Marinakis v Karipidis & Ors [2025] EWHC 13 (KB) delivered on 10th January 2025, Deputy High Court Judge Richard Spearman KC was tasked with hearing applications by the four defendants in a defamation claim to set aside an earlier order of Master Cook permitting the Claimant to serve its claim form outside the jurisdiction.

The underlying claim by Mr Marinakis, a prominent Greek shipping magnate/international businessman and (through his companies) majority owner of Nottingham Forest FC and Olympiacos FC., sought over £2.1 million in damages, alleging that the Defendants orchestrated a “smear campaign” against him involving false allegations of match-fixing and other criminal activities. In particular, it was alleged that between November 2023 and March 2024, a number of statements were published on various platforms, including on mobile billboards near Nottingham Forest’s stadium and a website named “nottinghamforestfire.co.uk,” about the Claimant which were of a seriously defamatory nature and included accusation of extortion, fraud, match-fixing and arson as well as involvement in international heroin trafficking:

“Paragraphs 87 to 96 of the Particulars of Claim set out the Claimant’s case (1) that each of the statements complained of reached a substantial number of publishees in this jurisdiction and (2) as to how the statements complained of have caused him serious reputational harm for the purposes of section 1 of the Defamation Act 2013.In summary, the pleaded case concerning the extent of publication relies on the length of time that the publications were available, the fact that they were targeted at NFFC supporters who are predominantly based in this jurisdiction, the cross-fertilisation of the publications, the known extent of a number of the publications … and the “grapevine effect”

The original order of Master Cook was made without notice to the Defendants, and without a hearing. The grounds upon which the Defendants applied to the court for it to be set aside included that the Claimant had not given full and frank disclosure in securing it; that England and Wales was not clearly the most appropriate place in which to bring the action; that the claim lacked merit and that it was an abuse of process.

The judge quoted the now well established law on service outside the jurisdiction laid down by Warby J in Soriano v Forensic News LLC [2021] EWCA Civ 1952; [2022] QB 533 as permitting the same where three conditions are met:

“(1) The first is that the claim is of a kind that falls within one of the “gateways” set out in CPR PD 6B (“the Gateway Requirement”). On this question, the claimant has to satisfy the court that he has a good arguable case or, as it is sometimes put, the better of the argument. This connotes “more than a serious issue to be tried or a real prospect of success, but not as much as proof on the balance of probabilities”: AstraZeneca UK Ltd v Albemarle International Corpn [2011] 1 All ER (Comm) 510, para 24 (Hamblen J).

(2) Secondly, the claimant must satisfy the court that he has a real as opposed to a fanciful prospect of success on the claim (“the Merits Test”). One way this has been put is that the claimant has to show that any “reverse” summary judgment application would fail.

(3) Thirdly, “The court will not give permission unless it is satisfied that England and Wales is the proper place in which to bring the claim”: CPR r 6.37(3) (“the Forum Test”). This is normally resolved by reference to the “Spiliada” principles as to the appropriate forum or (in the classic language) forum conveniens for the trial of the claim: see Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460, 478-480 (Lord Goff of Chieveley). The question is whether this jurisdiction is “clearly or distinctly” the most appropriate. The appropriate forum is the one in which the case “may most suitably be tried for the interests of all the parties and for the ends of justice”. The first thing to consider is what is the “natural forum”, namely the one “with which the action [has] the most real and substantial connection”. If the court concludes that another forum is as suitable or more suitable than England, it will normally refuse permission. Again, the issue is not determined on the balance of probabilities; the claimant’s task is to show that he has the better of the argument on the point. If he fails to do so, the application will be dismissed.”

12. A claimant seeking permission to serve outside the jurisdiction always bears the legal burden of proof on all these issues. That is so whether the matter is being considered on an application by the claimant at the initial, without notice stage, or at the hearing of a subsequent application by the defendant to set aside an order permitting service outside the jurisdiction. But a defendant challenging such an order needs to identify some other forum which does have jurisdiction; and even the initial application requires there to be another candidate with the requisite jurisdiction: Unwired Planet International Ltd v Huawei Technologies (UK) Ltd [2020] Bus LR 2422, paras 96-97. Where the claimant’s contention that the case is a proper one for service out is disputed by the defendant on a specific ground the defendant bears an evidential burden in relation to that ground: see AstraZeneca (above) at paras 33–39 (Hamblen J).”

The learned judge also quoted extensively from case law expanding upon the application of each of these limbs in the context of libel and conspiracy claims and from case law in respect of the duty to give full and frank disclosure.  

He then went on to consider each limb and its application in turn. As to the first, gateway requirements, he stated as follows:

“…the claims for injunctions in respect of both the cause of action for defamation and the cause of action for conspiracy to injure by unlawful means are clearly pleaded, and there is no obvious basis on which, on the materials at present available, it could be contended (a) that those claims are not a genuine part of the substantive relief sought by the Claimant or (b) that there is no real prospect that the injunctions sought may be granted. Second, in respect of both causes of action, the Claimant relies on damage said to be have been sustained by him within this jurisdiction (and, in addition, the Particulars of Claim do not rely on foreign law, and none of the Defendants suggest that those causes of action are not governed by the law of England and Wales).”

As to the Merits limb, the judge gave extensive and detailed consideration to the way in which the claim was pleaded and to the other material before him, as well as to the various legal and evidential hurdles the Claimant would be required to surmount in order for his claim to succeed. That detail is beyond the scope of the present briefing, but it led the judge to conclude that whilst the merits test was met by the pleaded case against the First, Third and Fourth Defendants, it was not met against the Second Defendant. 

In relation to the forum limb, the judge again found the Claimant’s arguments the most persuasive and adopted them in full:

“…(i) the statements complained of were published in this jurisdiction, and caused damage to the Claimant’s reputation in this jurisdiction; (ii) accordingly, this is the jurisdiction with which both the action for defamation and the action for unlawful means conspiracy (as the “unlawful means” comprise the same defamatory publications) have the most real and substantial connection; (iii) there is no other suitable forum, let alone any forum which is more suitable, because (among other things) none of the Defendants are domiciled in any single foreign jurisdiction, and the claim is centrally concerned with a Campaign of publications which were published in England to an English audience and in the English language (and to which the law of England and Wales applies); and (iv) even if the place of commission of the unlawful means conspiracy could be said to be some foreign jurisdiction (and it should be noted that Mr Hodson did not identify what jurisdiction that would be), that is only one factor which is relevant when deciding whether that jurisdiction is clearly or distinctly the appropriate place in which to bring the present claim, and in the instant case that factor is outweighed by other factors, such as those identified in (i)-(iii) above. In particular, it is impossible to say that the bulk of the evidence will come from witnesses in any one foreign jurisdiction as (a) it is unclear whether and on what basis the allegations complained of will, in fact, be defended, (b) even if they are defended, for example as being substantially true, they concern not only match-fixing in Greece and drug trafficking into Greece but also sanctions breaking involving shipments from Russia and complaints emanating from the USA, (c) further, evidence relevant to other possible defences, such as public interest, would or may involve witnesses from Israel and the USA, and (d) how many witnesses may be required from each jurisdiction is unknown (see VTB Capital plc v Nutriek International Corp [2013] UKSC 5; [2013] 2 AC 337, Lord Mance JSC at [51] “The significance attaching to the place of commission may be dwarfed by other countervailing factors.”).”

Finally, in relation the alleged failure of full and frank disclosure and the abuse of process arguments, the judge dismissed the latter, but partially upheld the former. In particular, he was critical, among other things, of the way in which a number of allegations were put/ relied upon in “the unfiltered way in which they were” and the impression given at several points that the claims against each Defendant were of equal weight. Those breached were not, however, considered of sufficient gravity to set aside the order of Master Cook:

“In these circumstances, I consider it right to impose a sanction for the breaches that I have held to be made out, but at the same time I consider that it would be going too far to set aside the Order of Senior Master Cook on these grounds. In my judgment, the appropriate way in which to mark the failures to comply with the duty of full and frank disclosure which occurred in this case is by ordering that the Claimant should be deprived of his costs of the application that he made before Senior Master Cook.”

In conclusion therefore, the judge set aside the original order of Master Cook against the Second Defendant, but upheld it against the other Defendants.

This case usefully illustrates the manner in which the court must proceed in considering such applications. This case obviously concerned matters of an especially fractious and acrimonious nature. The care and thoroughness with which the judge approached the various grounds of application indicate his admirable commitment to engaging with the detailed factual and legal complexities of the case.

About the Author

Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at Deka Chambers.

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