When the stakes are high, cutting corners remains a fool’s bargain
Using artificial intelligence instead of a solicitor is risky, writes Bobby Murray
Artificial intelligence is evolving rapidly. Increasingly, people and businesses with a grievance are turning to AI, hoping to avoid the significant cost of instructing a lawyer.
But how helpful is AI when a claim comes under the forensic glare of a court? The recent case of McCandlish Farmhouse Confectionery Limited v Michael Malone and Debbie Watt offers a cautionary answer: when it comes to litigation, professional advice still matters.
Lord Sandison described the proof, Scotland's final evidential hearing, as: “a salutary lesson in how AI may prompt lay persons to say the right things in pleadings but cannot furnish the evidence needed to establish those statements.”
The dispute concerned Chelsea Whoppers, a nostalgic chocolate fudge bar dusted with cocoa powder. Mr Malone made and sold them, but McCandlish held registered trademarks relating to their production. The second defender, Ms Watt, had no involvement beyond setting up a Facebook page to give Mr Malone’s business an online presence. McCandlish sought damages exceeding £1 million on various grounds.
The problem wasn’t merely that McCandlish used AI to draft its case, but that it apparently assumed that was all it needed to do.
Proceedings were raised in March 2026. Mr Malone subsequently undertook to stop producing Chelsea Whoppers because he made so little money from them that it was not worth continuing. Lord Sandison noted with surprise that this undertaking “failed to inject any element of proportionality” into McCandlish's approach to the litigation.
Despite a series of unambiguous directions from the judge regarding obvious difficulties with the case, McCandlish did not instruct solicitors until 24 July, just 12 days before proof. By then, McCandlish had obtained no meaningful supporting evidence. No expert witness had been engaged to assess what losses, if any, it had suffered.
The claim had been hanging over both defenders for months, carrying what the court described as the potential for their “ruination”. The judge was unwilling to grant McCandlish’s lawyer further time to amend the case.
Ultimately, the court found Mr Malone had indeed infringed one trademark. McCandlish nevertheless recovered no damages because it had produced no evidence of loss. Lord Sandison observed that its claims “existed in the AI realm only”.
This was not necessarily a case that was doomed from the outset. The judgment identified potential losses that might have been established with evidence. However, much of the claim was also time-barred. In Scotland, damages claims generally prescribe five years after the loss is sustained. The relevant trademark had been registered more than six years before proceedings were raised.
McCandlish therefore left empty-handed and liable for Ms Watt's legal costs (as she was plainly the wrong target). Although it will not have to pay Mr Malone's costs, it must still bear its own substantial bill for solicitors, counsel and court time.
Lawyers can appear expensive, particularly during challenging economic times. But using AI as a substitute for legal advice in serious litigation is a false economy. A good lawyer would have identified the time-bar problem, explained what evidence was needed, avoided pursuing Ms Watt and highlighted the risk of adverse costs. The financial upside of that advice would have dwarfed the cost of obtaining it.
AI may help litigants find the words (albeit often the wrong ones), but it can’t interrogate the facts or commission the evidence required to prove a loss. When the stakes are high, cutting corners remains a fool's bargain. Invest in yourself and take professional advice.
Bobby Murray is a partner, Harper Macleod