Advocates misleading the courts Part 1

Citation of 'fake' cases and wasted costs

How far reckless for lawyers to rely on AI bots?

In R (Ayinde) v The London Borough of Haringey [2025] EWHC 1040 (Admin) (3 April 2025) Ritchie J a wasted costs order was made where a judge found his court had been misled by the claimant’s barrister; though there were a variety of professional practice failings amongst both parties’ lawyers.

The case was a homelessness application. The judge recorded (at [11]) that ‘the defendant accommodated the claimant [ie Frederick Ayinde (A)] so that he was no longer street homeless’; and a consent order had been filed the day before the hearing. As far as one can tell, A emerged from this relatively unscathed.

However, neither sets of lawyers (‘teams’) for the applicant or the local authority come out of this well. Richard Moorhead explains this in his This is not an AI case; and he deals more widely with the wider professional issues than I intend to here. I shall be saying – whether or not this is ‘an AI case’ – that the case raise serious questions about advocates (solicitors and bar and, perhaps, lay advisers) have a high duty not to mislead the court, whether they do so intentionally or ‘recklessly’ (a term I explain later by reference to professional codes of conduct).

Local authority applications and disbarment

Ritchie J summarises the applications before him that

[1] In this case I have before me an application for relief from sanctions dated 7 March 2023. What it says is that the London Borough of Haringey asks the order to grant:

1 … (d) Relief from sanctions so that we can participate in the trial of this matter on 3 April 2025 despite not having filed detailed grounds of resistance.

Then 2: ‘To make a wasted costs order under section 51(6) of the Senior Courts Act 1981 against: a) Haringey Law Centre, and b) Ms Sarah Forey of counsel.

Ritchie J debarred Haringey from further involvement in the proceedings (see end of [8]) with the following assessment:

[6] This Defendant has taken part in a wholesale breach of court orders. It is, in my view, improper that they have failed to file a statement of facts and grounds of defence and an acknowledgement of service, and that they did not file skeletons and bundles on time. The witness statement explaining why says little more than: “We didn’t. It was my predecessor’s fault”.

Judicial review: a summary of procedure

Despite the panoply of administrative law and its own specialist court, it is worth recalling that judicial review provides for a very simple procedure (as distinct from aspects of the substantive law on which it often is based). Civil Procedure Rules 1998 (CPR 1998) Part 54 provides that procedure. CPR 1998 r 54.1(2)(e) launches straight in by saying that ‘judicial review procedure means the [CPR 1998] Part 8 procedure as modified’ by Part 54. Part 8 provides a simplified procedure where evidence is unlikely to be contested.

For present purposes it need only be asserted that the claim form must comply with CPR 1998 rr 8.2 and 8.5 as varied by r 54.6. In particular the claimant must file the evidence on which it is intended to rely (r 8.5). The first stage is for the claimant to obtain permission; and this may result in ‘grounds’ for an application containing fact and law. By contrast a respondent – Haringey in our case – need only file an abbreviated defence (called the ‘acknowledgement of service’) – at the pre-permission stage (r 54.8).

Ritchie J concluded the first part of his judgment, before moving on to the wasted costs application, as follows:

[13] … I am going to deal firstly, in the absence of submissions from the Defendant because they are debarred, with the costs of the judicial review. Then, after I have dealt with that, I am going to move on to deal with the application for wasted costs, which I consider is separate from the costs of the judicial review due to the substance thereof

He dealt with costs against the council at [14]-[33] and summarily assessed those costs to the claimant at £13,500.

Wasted costs order applications

The AI aspect of the case – or not? – is dealt with at [34]-[72] and is the part of the judgment which has attracted most attention. It is a judgment on the local authority’s claim for wasted costs against the lawyers for A. It seems that the barrister, Sarah Forey, represented herself before the judge. Her client’s case was at an end. I do not know, nor am I entitled to, I suspect – whether she had reported the wasted costs application to her insurers.

Though he does not cite himself Ritchie J is familiar with wasted costs order applications at a high level and has explained the subject extensively.

The barrister for A in her judicial review grounds referred to five cases. They were ‘fake’ (Ritchie J’s term): according to my computer’s search of the case report – an example of AI? – there are 27 mentions of the word ‘fake’ in the report, the first at [35]. And when the non-existence of the cases was drawn to the attention of A’s lawyers it was passed off as ‘“minor citation errors” or to use the phrase of the solicitors, “cosmetic errors”’ (see the judge’s comment in [64] below). And it was ‘unprofessional’ for the solicitors to brush of the situation as that it could be explained, but then to fail to explain it (see [66]).

Reckless misleading of the court

Bar Standards Board Code at rC3 says (in Kitchener style of drafting: the ‘you’ is a barrister): at .1 (sic): ‘you must not knowingly or recklessly mislead or attempt to mislead the court’. I treat the instructing solicitors as being similarly bound. Were she to have given evidence I shall assume that Ms Forey would have said her error was not deliberate. Surely that is not enough? And how the solicitors – who could have uncovered the error – could say the same, I do not know.

Let us assume for this post that the error was not ‘knowing’. But ‘recklessly’? I am no criminal lawyer; but I know the difference between what actually happened (actus reus) and intent to commit an act (mens rea). When I was at Law School Theft Act 1968 had just been passed (yes, yes, Hey Jude (the Beatles) was at No1). Theft Act s 1(1) said – and as far as I can see it is still on the statute book:

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

Our lecturer posed the question: imagine you leave a bar or restaurant and take a rolled umbrella which you thought was yours; but – as it turns out – it was not. You have taken the ‘property belonging to another’; but you have no intention permanently to deprive anyone. You are not guilty under s 1. Can the same be said of the advocate who fails to check references. Surely so to fail is ‘reckless’; and well within what is within our professional codes?

In mitigation of any offence by the rolled umbrella taker, most rolled umbrellas look much like each other. Cases like the five fakes in Ayinde all in name looked quite different; and when searched for would be shown – to Sarah Forey and any members of A’s legal team – not to exist. Citation was ‘fake’. I doubt that it was deliberate, just negligent on the part of A’s lawyers.

Ritchie J summarised the position:

[64] I now come to the relevant [wasted costs order] test. Has the behaviour of Ms Forey and the Claimant’s solicitors been improper, unreasonable or negligent? I consider that it has been all three. It is wholly improper to put fake cases in a pleading. It was unreasonable, when it was pointed out, to say that these fake cases were “minor citation errors” or to use the phrase of the solicitors, “Cosmetic errors”. I should say it is the responsibility of the legal team, including the solicitors, to see that the statement of facts and grounds are correct. They should have been shocked when they were told that the citations did not exist. Ms Forey should have reported herself to the Bar Council. I think also that the solicitors should have reported themselves to the Solicitors Regulation Authority. I consider that providing a fake description of five fake cases, including a Court of Appeal case, qualifies quite clearly as professional misconduct.

The common law does not work where courts are misled, recklessly or not

Our common law system cannot work if ‘the books’ – the substance of that aspect of English and Welsh common law – is treated as fiction. Whether provided by a bot, or by an opponent in a case, references must be checked. We are supposed to read the whole case (I have read in full Ayinde and Richard Moorhead’s post!). Sometimes, a headnote can suffice (there is no headnote yet for Ayinde, and none for Richard’s post), at least for a summary of the relevance of a case. Had Ms Forey and her solicitors attempted to read a headnote they would all have realised that their pleadings and any other documents referring to the fakes was a tissue of fictions.

It all worked out – eventually – for the unfortunate client; but at what cost to the lawyers all of whom suffered wasted costs orders in the modest sums of £2,000 each for Ms Forey and her instructing solicitors.

And if ‘recklessness’ is to be pleaded as mitigation for misleading, let the threshold be low indeed if recklessness can be treated as conduct of litigation.

David Burrows

8 May 2025