# Court-Ready Litigation Capacity | Nellie Supports Source: https://www.nelliesupports.com/guides/court-ready-capacity-to-litigate-assessments Canonical: https://www.nelliesupports.com/guides/court-ready-capacity-to-litigate-assessments Written by: Ben Slater Source review by: Kerry Slater Source review recorded: 2026-07-19 # Capacity to litigate reports for court proceedings 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 and Publication Author: Nellie Supports Ltd Publication Date: 15/05/2026 ​ ## Citation Dunhill v Burgin [2014] UKSC 18. ## Copyright Copyright © 2026 Nellie Supports Ltd. All rights reserved. ​ This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd. ​ This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms. ## Abstract 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. ## What is on this page - [Contact](https://www.nelliesupports.com/guides/court-ready-capacity-to-litigate-assessments) - [Overview](https://www.nelliesupports.com/guides/court-ready-capacity-to-litigate-assessments) - [Frequently Asked Questions](https://www.nelliesupports.com/guides/court-ready-capacity-to-litigate-assessments) - [Related Pages](https://www.nelliesupports.com/guides/court-ready-capacity-to-litigate-assessments) 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. ## What court-ready means 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. ## Anchored to these proceedings 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. ## 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 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. ## The functional evidence courts actually weigh 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. ## Timing against the litigation timetable 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. ## 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 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. ## Key takeaway 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. ## Frequently asked questions ### Does a diagnosis automatically mean someone lacks capacity? 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. ### 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? 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. ## Related mental capacity assessment pages The related guides below provide further explanation of the decisions, evidence and legal processes discussed here. ### Mental Capacity to Litigate Assessment ### Fluctuating capacity and mental capacity assessments ### How enhanced reports support court and solicitor scrutiny ### Read guide ## Practical next steps 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. ## Primary sources and official guidance [Mental Capacity Act 2005](https://www.legislation.gov.uk/ukpga/2005/9/contents) [Mental Capacity Act Code of Practice](https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice) ## Related information - [Mental Capacity Assessment to Revoke a Lasting Power of Attorney](https://www.nelliesupports.com/lasting-power-of-attorney-services/revoke-lpa) - [NHS Continuing Healthcare Support](https://www.nelliesupports.com/services/continuing-healthcare) - [CHC Appeal Application: Drafting and Submission](https://www.nelliesupports.com/services/continuing-healthcare/chc-appeal-application) --- Nellie Supports Ltd · 0333 987 5118 · nellie@nelliesupports.com Office 11 and 12, Unit 20, Springfield Business Park, Grantham, NG31 7FZ