Dispute Resolution analysis: The Divisional Court has ruled on the consequences of misusing artificial intelligence (AI) in court proceedings. Following two referrals arising from actual or suspected misuse of generative AI by lawyers, the court used its inherent powers to enforce the duties owed by lawyers to the court (the Hamid jurisdiction). The judgment provides vitally important guidance to practitioners on their duties to the court and to their professional regulators when using AI. It also explains the sanctions likely to apply for misuse of AI including public admonishment, strike out and costs sanctions, referrals to regulators, contempt of court and, in the most egregious cases, referral to the police for criminal investigation. The judgment also provides a comprehensive index of cases from around the world where fake citations (or other misleading material) have been placed before the court. Written by Harriet Campbell, senior knowledge lawyer at Penningtons Manches Cooper LLP.

FORTHCOMING CHANGE: Further to the Government's response to the Ministry of Justice’s and Office of the Public Guardian (OPG)’s consultation Modernising Lasting Powers of Attorney, the Powers of Attorney Bill received Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 (PAA 2023). Most provisions of the Act are not yet in force, pending secondary legislation. When it does come into force, the PAA 2023 will introduce changes to the Mental Capacity Act 2005 (MCA 2005) to create a more modern lasting power of attorney (LPA) service. The changes will include: (i) introducing regulations to allow those involved in making an LPA to select whether to sign the LPA digitally or on paper; (ii) removing the ability for attorneys to register an LPA so that only the donor will be permitted to register; (iii) introducing regulations governing identification verification requirements in relation to registration applications; (iv) providing for a single route for registration objections to the OPG and widening the group of people

Information Law analysis: In a claim for misuse of private information (MPI), the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages found at work, and how such material should be dealt with in the context of ongoing legal proceedings. The judgment considers a number of applications by the defendants for summary judgment and/or strike out of various parts of the claims and counter claims on the basis of abuse of process and malicious prosecution, and also discusses the factors that will be taken into account when considering whether interim payments into court should be made as a condition of the proceedings continuing. The court dismissed the applications in their entirety on the 'clear conclusion that they are without merit' and 'not worthy of serious consideration'. Written by Charlotte Clayson, partner at Trowers & Hamlins LLP.

The tort of misuse of private information is the principal cause of action relied on to protect privacy rights, at least against defendants who are not public authorities. However, in any particular case, a claimant is well-advised to consider whether reliance on other causes of action might strengthen their ‘privacy claim’. As Lord Hoffmann observed in Wainwright v Home Office: ‘[t]here are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right to privacy.’ (at para [18]) This Practice Note considers six causes of action which may be relevant in a ‘privacy claim’. For more information on misuse of private information claims, see Practice Notes: • Starting a claim for misuse of private information—a practical guide, and • Responding to a claim for misuse of private information—a practical guide EU case law This Practice Note refers to cases from the Court of Justice. For guidance on whether judgments

Information Law analysis: This judgment forms part of highly contentious intra-familial litigation which has some history within the courts. The primary causes of action pleaded were misuse of private information and harassment. The case law on each remains relatively settled but there is a salutary tale for claimants here in that it demonstrates that they must define the ambit of what a defendant is accused of and avoid broadbrush allegations dependent upon a circumstantial inference that a defendant must have been to blame. The heart of the case lay in the court’s dissection of the undue influence and duress claims, which were pleaded to undermine the discontinuance of a previous commercial action against the same body of defendants. The court’s analysis of duress and undue influence was replete with a helpful illustration of the distinction between the two. Written by Josh Radcliffe, barrister at New Walk Chambers, Leicester.

Information Law analysis: Percy Preston, legal assistant at Brett Wilson LLP, discusses misuse of private information claims in light of the Supreme Court judgment in Lloyd v Google. He considers they key points made in relation to such claims in the judgment, whether a claim for invasion of privacy is now likely to succeed, the practical implications for assessment of damages in misuse of private information claims, and whether more class actions for misuse of private information can now be expected.

Introduction Environmental, social and governance (ESG) considerations are at the forefront for governments, for regulators, for consumers and for employees. Businesses cannot ignore the growing momentum behind ESG factors and the drive to greater disclosure and transparency. But it is more than that. When it comes to developing, implementing, and reporting on strategy, businesses can see ESG factors as central to creating long-term value. ESG factors are proving themselves as material drivers of financial performance and business resilience. More transparency is leading to more profitable investing and better disclosure is seen as benefitting all stakeholders. This is highlighted by a global study by Fidelity showing that companies with better ESG ratings generated higher returns than did their peers

A factor indicating reduced or lower culpability of the offender and/or harm caused by an offence which leads to a less severe sentence being imposed on conviction

You must take appropriate technical and organisational measures against unauthorised or unlawful processing of, and accidental loss of or damage to, personal data. Not all information security breaches are IT related—human error is also a great threat. The implications for your business of any loss of confidential data, however incurred, can be severe: • loss of your own data can prejudice your ability to complete work and is likely to increase the chances of error and omission claims • loss of your clients’ data is very likely to lose you clients and damage your reputation, and any loss of confidential data is likely to impact on your bottom line • significant fines can be imposed by the Information Commission’s Office (ICO) under the data protection regime This Practice Note considers practical steps you can take to seek to improve and maintain information and data security. See further Precedent: Information security review, that contains links to other relevant precedents and guidance, to help you get and keep your systems in shape to ensure

The National Planning Policy Framework (NPPF) encourages local planning authorities to design their local policies to ‘give substantial weight’ to the benefits of improving renewable and low carbon energy development, with renewable energy infrastructure presumed to be compatible with sustainable development objectives both inside and outside ‘settlements’ (built up areas) unless adverse outcomes substantially outweigh those benefits. Planning conditions and obligations can be used to make renewable energy development acceptable where it would otherwise be unacceptable. Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. Planning obligations are subject to the 'reasonableness tests' in the Community Infrastructure Levy Regulations. See Practice Note: Planning conditions—key points. The former Department of Energy and Climate Change (DECC) published sample conditions relating to wind energy developments. The National Policy Statement for Renewable Energy Infrastructure (the Renewables NPS) also provides guidance on various forms of mitigation of onshore wind farm impacts. However, determining authorities should adapt these where appropriate,

A claimant may be under a duty to mitigate their loss if there is a breach of contract or a tort is committed. The effect of a failure to mitigate is that the claimant cannot recover damages in respect of the portion of their loss that is attributable to their own conduct or lack of it.

Mitigation applies to all damages claims The concept of the claimant ‘mitigating their loss’ applies to all civil claims for damages, regardless of whether the claim is pursued in contract, tort or in other specified situations (although much of the caselaw on mitigation has been developed in contract law cases). Therefore, even once causation and remoteness have been established (see Practice Notes: Causation and remoteness in contractual breach claims and Causation and remoteness in tort and negligence claims), any recoverable damages can be affected if the claimant has failed to mitigate their loss. That is, the innocent party cannot recover damages for any loss which they could have avoided but failed to avoid through unreasonable action or inaction. Central to the issue of mitigation is the question of what steps were reasonable or unreasonable for the claimant to take? This has been termed as ‘the duty to mitigate’ or the ‘rule on mitigation’. What is the rule on mitigation? The rule on mitigation comprises three distinct components: • the innocent party must take all reasonable