GUIDES
A litigation capacity report should address the proceedings as they should properly be conducted, with available support and legal advice. It must explain the person’s ability to conduct the case as a whole; the court determines protected-party status and any procedural consequences.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Dunhill v Burgin [2014] UKSC 18.
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A litigation capacity report should address the proceedings as they should properly be conducted, with available support and legal advice. It must explain the person’s ability to conduct the case as a whole; the court determines protected-party status and any procedural consequences. This guide covers the relevant evidence, support, process and limits in England and Wales.
A litigation capacity report should address the proceedings as they should properly be conducted, with available support and legal advice. It must explain the person’s ability to conduct the case as a whole; the court determines protected-party status and any procedural consequences. The opinion should show the case information, practicable support, functional findings and any causal link to impairment. “Court-ready” is not a guarantee of permission, acceptance or outcome.
A useful report identifies the proceedings, question, material time, evidence, method and applicable legal test. It explains support, findings, reasoning and limitations in a form the court can evaluate. Confirm procedural requirements before instruction rather than rely on a service label.
Consider the proceedings as they should properly be framed, their complexity and the decisions required over the case as a whole. The person need not perform their lawyer’s work: assess their ability to engage with advice and make necessary decisions with support. A single isolated settlement choice or general cognitive impression is insufficient.
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.
The expert should disclose relevant relationships and form an opinion independently of the preferred result. Distinguish fact from inference, address contrary evidence and stay within professional competence. A provider’s internal quality review may assist but cannot establish independence or determine the court’s view.
Use relevant examples of the person’s engagement with their case and legal advice, recording words and actions accurately. Explain what they show about the functional abilities and any support needed. Quoted answers are useful evidence but not conclusive proof of capacity or incapacity by themselves.
Consider whether a material change in the person’s condition, the proceedings or available support makes an update necessary. There is no automatic requirement for reassessment at every stage or a fixed expiry date. Raise genuine doubt promptly with the litigation solicitor.
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.
Identify the proceedings, the capacity question, relevant time, support and records, including the case as it should properly be framed. Confirm court directions and the applicable expert rules, rather than assuming CPR Part 35 governs every court or tribunal.
A report assists the court by applying the appropriate test to the properly framed proceedings with support. Clear instructions and reasoning help scrutiny, but the court decides protected-party status, permission to rely on evidence and any resulting orders.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
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.
Seek assessment where genuine doubt about conducting proceedings remains and the procedural answer matters. The solicitor should address protected-party status, a litigation friend and any required approval, without treating a report alone as creating those arrangements.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Give the expert the pleadings, issues, relevant advice and examples of how the person engages with the case. Confirm available support, the court’s directions and the procedural rules; the court remains responsible for the legal determination.
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