New guidance on the use of AI in the construction court requires a structured and disciplined use of these technologies says Charlotte Clayson
As a specialist court, the Technology and Construction Court (TCC) is at the forefront of dealing with some of the most complex and high-value construction, engineering, technology and infrastructure disputes in England and Wales.
As we continue to see the rapid adoption of Artificial Intelligence technologies within the sector, the TCC must also consider how it works and how those who use the court prepare their cases.
The TCC has recently published its Fourth Edition of the TCC Guide, including for the first time dedicated guidance on the use of AI. This development is significant for everyone involved in the resolution and determination of construction and engineering disputes.
What has changed?
“AI can be used, provided that legal representatives are mindful of their professional responsibilities and obligations, drawing very clear lines around accountability, accuracy and confidentiality.”
In recognition of the increasing use of AI, it would be amiss not to include guidance on how AI ought to be considered in construction disputes. The 2026 TCC Guide therefore introduces a new section, Section 1.6, dedicated to “The Use of Artificial Intelligence”, sitting within the Guide’s introductory provisions and applying across all and every stage of TCC proceedings.
Recognising that these tools can genuinely improve efficiency in the management of heavy, document-intensive litigation that is characteristic of TCC disputes, the TCC’s approach does not seek to prohibit AI use. Instead, it confirms that AI can be used, provided that legal representatives are mindful of their professional responsibilities and obligations, drawing very clear lines around accountability, accuracy, and confidentiality.
What are the key risks?
The guidance identifies several specific risks to which legal representatives and their clients must be alive.
Accuracy of Research and Case Citations
Perhaps the most pressing risk flagged by the Court is that of AI-generated inaccuracies, where AI tools fabricate case references or legal authorities that do not exist. In line with their professional obligations, legal representatives must independently verify the accuracy of any research or case citations that have been generated through or with the assistance of AI and must be able to confirm that to the court.
Legal representatives must be able to stand behind the submissions and other material prepared for and placed before the TCC. Clearly, in a jurisdiction where technical expert evidence, case law and detailed contractual analysis are key, the consequences of placing inaccurate AI-generated material before a TCC judge could be significant.
Confidentiality and Data Privacy
Construction disputes routinely involve the handling of confidential and highly sensitive commercial information. Given the way in which some publicly accessible and open-source AI tools are set up and trained, there is a clear risk of inputting client-sensitive material into an AI tool that processes or stores data externally.
The Guide is therefore clear on this point: legal representatives must ensure the confidentiality and protect the privacy of the underlying data that is fed into any AI tools. Whilst many law firms allow the use of certain AI tools for client work within clear and robust data governance protocols, these should be kept under continuous review, alongside the use of AI tools by clients, experts and consultants.
Professional Responsibility and Accountability
AI can be a useful tool but cannot a substitute for professional judgement. The Guide is clear that there can be no shifting of responsibility to the AI tools themselves for errors or misjudgements. All legal representatives will be considered personally responsible for the material they put before the Court and have a professional obligation to ensure that they are accurate and appropriate. Given that the responsibility lies with the legal representatives as to the material they put before the court, open and honest conversations should be had with clients, experts and others working on the case to ensure a clear understanding of when AI tools may be used and the extent of any internal or external materials that have been produced with AI assistance.
Disclosure of AI Use
The Guide includes an obligation of transparency in the use of AI, but the extent of that obligation will be context specific. Whether and to what extent legal representatives should disclose their use of AI will depend on a number of matters including the nature and substance of the material in question. However, any doubt as to whether its use should be disclosed will usually be answered with a “yes”. Particularly whilst the use of AI within the context of court proceedings beds in, all those involved in disputes in the TCC should err on the side of caution and transparency with the court will be key.
How will these risks be managed?
For clients and their legal teams, managing these risks requires a structured and disciplined approach to AI adoption. Practically speaking, this means:
- Data governance: All AI tools must be assessed for compliance with data protection obligations and professional obligations on confidentiality. Client data should not be entered into AI platforms without appropriate safeguards, robust controls and clear frameworks for safe AI use.
- Verification: All AI-generated work must be reviewed and checked in order to uphold the standards expected by both the court and the profession. In particular, citations, case references and research outputs must be independently checked against primary sources before being used or relied upon in any document submitted to the Court.
- Training and supervision: Those working on TCC cases must understand the limitations of AI tools. Senior supervision of AI-assisted work product and of those using AI tools, is essential. Supervision and training ought to be clear, focussed and practical.
- Transparency: Legal teams should maintain a clear record of where and how AI has been used in preparing materials, so that its use can be represented quickly and accurately if the question arises before the Court.
- Open and honest discussions: Given the extensive use of AI outside of as well as within the legal profession, all those working on a dispute, from legal representatives and clients to experts and consultants should openly discuss if, how and why AI might be used in the claim and keep appropriate records to allow legal representatives to understand its use and comply with the court’s expectations.
Charlotte Clayson is a dispute partner at Trowers & Hamlins
