Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Dunhill v Burgin [2014] UKSC 18.
Copywright
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Court-ready capacity to litigate assessments
A court-ready capacity to litigate assessment is one prepared in the knowledge that a judge may read it: it identifies the actual proceedings, applies the Mental Capacity Act 2005 to the decisions those proceedings require, follows Masterman-Lister and Dunhill v Burgin, records the support given to the person, reasons the causal link and meets the expert evidence rules. Court-ready is a discipline rather than a label, and reports that lack it are picked apart quickly. This guide explains what the discipline involves and how to instruct for it.
What court-ready means
A court-ready capacity to litigate assessment is one built, from instruction to signature, to function as evidence in the proceedings it concerns: decision-specific to those proceedings, compliant with the rules governing expert evidence and reasoned so that a judge, and an opposing party, can trace every conclusion to its foundations. Court-readiness is not a finishing coat applied to an ordinary report; it is a set of choices made at the start, and reports not built this way rarely survive being promoted to it.
Anchored to these proceedings
The assessment must be conducted against the actual litigation: its issues, complexity, stage and the decisions pending, because litigation capacity is issue-specific and generic conclusions about the person do not answer the question. That requires the assessor to be properly instructed about the case, to review the key documents and to test the person's reasoning on the case's real choices, and it is the first thing scrutiny examines, since an assessment that never engaged with the proceedings cannot speak to conducting them.
CPR Part 35 from the outset
Where the report will be relied upon in civil proceedings, CPR Part 35 governs it: the expert's overriding duty is to the court, the report states the substance of all material instructions, addresses the range of reasonable opinion, distinguishes fact, observation and inference and carries the statement of truth and declaration. Building this apparatus in from the first draft is straightforward; retrofitting it onto a report written as a private opinion is where independence problems and instruction problems surface at the worst moment.
Independence that shows
Court-readiness includes visible independence: an assessor with no stake in the outcome, willing to reach the conclusion unhelpful to the instructing party, transparent about method and about the limits of what was assessed. Nellie Supports reports pass internal peer review before delivery precisely to test reasoning and independence before the court does, because an expert whose report has already survived adversarial reading in-house delivers evidence, and answers Part 35 questions, from solid ground.
The functional evidence courts actually weigh
Judges weigh the person's demonstrated reasoning more than any assertion about it, so the court-ready report carries the person's own words: their account of the claim, their engagement with the advice received, their weighing of a realistic settlement scenario, their grasp of costs risk. Verbatim responses, tied to the specific abilities the statutory test names, are what allow a court to see the capacity position rather than take the expert's word for it, and they are what opposing experts find hardest to dislodge.
Timing against the litigation timetable
Litigation capacity evidence dates quickly, because proceedings evolve and conditions move. The court-ready assessment sits close to the point it serves: the issue of proceedings, the appointment of a litigation friend or, most critically, settlement and approval, where the capacity position underwrites the validity of what is agreed. Where a case runs long, a confirmatory reassessment at its decision points keeps the evidence contemporaneous with the decisions it protects.
Part 35 questions and the expert after delivery
A court-ready report anticipates life after delivery: written questions under Part 35.6, requests for clarification, discussions between experts and, occasionally, oral evidence. The instructing solicitor should confirm at the outset that the expert remains available for these stages, and the report itself should be written so the answers are already within it, because an expert whose reasoning is fully shown has little to add under pressure except confirmation.
Instructing a court-ready assessment
The instruction makes the product: identify the proceedings and their stage, state the decisions the assessment must address, enclose the pleadings, key advice and relevant records, flag the timetable and any approval hearing and confirm the Part 35 basis expressly. An expert instructed this way delivers a report the court can use on arrival; an expert instructed to see whether the client is all right delivers a conversation, and the difference is decided before the visit ever happens.
Key takeaway
A court-ready capacity to litigate assessment is decision-specific to the actual proceedings, Part 35 compliant from the first draft, evidenced in the person's own reasoning and timed to the decisions it protects. Instruct it that way at the outset, keep it current at the case's turning points and the capacity evidence becomes the quiet foundation of the litigation rather than a satellite dispute within it.
Frequently asked questions
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not answer the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What evidence is useful for Mental Capacity to Litigate Assessment?
The documents of the person's real case: pleadings, offers and attendance notes showing how they engage with advice, together with the medical records explaining any impairment. Litigation capacity cannot be assessed in the abstract, because the complexity of the actual proceedings is part of the test.
When is a formal assessment for Mental Capacity to Litigate Assessment useful?
Whenever litigation capacity is in genuine doubt and the answer will matter procedurally: protected party status, litigation friend appointments and settlement approval all depend on evidence that will withstand judicial reading.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Need court-ready litigation capacity evidence?
Nellie Supports provides independent, decision-specific mental capacity assessments across England and Wales through a permanent employed team of registered professionals, with a same working day response to every enquiry and every report peer reviewed before delivery. Call 0333 987 5118 or visit the mental capacity assessment service page.