Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
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Copyright © 2026 Nellie Supports Ltd. All rights reserved.
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Evidence needed for a litigation capacity report
A litigation capacity report is built from three layers of evidence: the person's presentation in a structured, decision-specific assessment; the documents of the actual proceedings, including pleadings, offers and solicitor attendance notes; and the medical and care records that explain any impairment and its effect on understanding, retaining, using and weighing case information. The report must connect all three: what the proceedings require, what the person can do, and why any gap is caused by the impairment. This guide lists what to gather before instructing and how each item is used in the assessment.
The litigation documents come first
A litigation capacity report is anchored to particular proceedings, so the evidence begins with the case itself: the pleadings or application, the key correspondence, the advice given so far and any offers on the table. These fix what conducting these proceedings actually demands and supply the concrete material on which the person's reasoning will be tested. An assessor working without them can only assess litigation in the abstract, which is precisely what the case law says the question is not.
The solicitor's account of the retainer
The instructing solicitor holds functional evidence nobody else has: how the person has given instructions across the retainer, whether they follow advice when it is explained, what they retain between conferences and where the difficulties have actually shown themselves. A short, factual account of the conduct of the retainer, dates, examples, changes over time, grounds the assessment in months of observed decision-making rather than a single afternoon, and it should be requested as a matter of course.
Medical and cognitive records
Medical records ground the diagnostic limb and the trajectory: the condition, its course across the life of the case, treatment changes and anything bearing on fluctuation. As everywhere in capacity work, diagnosis explains why the question arises without answering it, and in litigation reports the causative link matters acutely, because the court needs to see that any inability to conduct the proceedings flows from an impairment of, or disturbance in the functioning of, the mind or brain rather than from stress, anger or the ordinary misery of being sued.
The direct assessment, tested on the real case
The core evidence is the person reasoning about their own litigation: explaining what the claim is about, what their solicitor has advised and what they made of it, working through a realistic settlement scenario and confronting the possibility of losing and its costs. Their verbatim responses, with key ground revisited to test retention across the conversation, form the evidence the functional analysis stands upon, and hypotheticals drawn from the actual case outperform any generic script.
Evidence of support and practicable steps
Litigation is among the most supportable of decisions, because advice, explanation and staging are built into how cases are conducted, so the report must show the support was real before any conclusion of incapacity: advice explained in plain language, decisions broken into steps, documents provided in accessible form, conferences timed and paced to the person. A person who can conduct their proceedings with properly adjusted support has litigation capacity, and the report should say so where it is true.
Fluctuation evidence across the life of the case
Because proceedings run long, the evidence should address change over time: how the person has presented at different stages, what the records show about the condition's movement and whether the current assessment catches the person at a representative moment. Where fluctuation is real, the report should say what the position is now, what may move it and when reassessment would be prudent, because a litigation capacity report is read against a timetable, not a single date.
Keeping the litigation question separate
The file will often raise neighbouring questions, capacity to manage the damages, capacity for the decision the case is about, and the evidence for each overlaps without being interchangeable. The report should conclude on capacity to conduct these proceedings and, where instructed, address the neighbouring decisions separately and expressly, because a court handed one blended conclusion cannot operate the distinct procedural machinery each question triggers.
Assembling the court-facing report
The finished report sets out the proceedings and their demands, the sources reviewed including the solicitor's account, the relevant information, the practicable steps, the person's own reasoning verbatim, the functional analysis, the causative link and a conclusion on these proceedings, prepared to CPR Part 35 standards where it may be relied upon in the case. Built this way it serves the appointment of a litigation friend, settlement approval and any challenge, without rebuilding.
Key takeaway
The evidence for a litigation capacity report runs from the case papers and the solicitor's account of the retainer through the medical record to the person reasoning about their own claim at its centre, with support documented and fluctuation addressed. Gather it before opining and conclude on the proceedings actually before the court, because this is evidence the litigation itself will stand upon.
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?
Pleadings or the letter of claim, any settlement offers, solicitor attendance notes showing how the person handles advice, GP and specialist records, earlier capacity or cognitive assessments, and details of any fluctuation in the person's condition. The more the assessor sees of the real case, the more decision-specific and defensible the opinion.
When is a formal assessment for Mental Capacity to Litigate Assessment useful?
Instruct the report as soon as doubt arises and before key procedural steps such as issuing, settlement negotiations or trial. Capacity evidence obtained late can unwind steps already taken, which is slower and costlier than assessing early.
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.
Preparing to instruct a litigation capacity report?
Nellie Supports provides litigation capacity assessments and critical reviews of existing reports across England and Wales, CPR Part 35 compliant and peer reviewed before delivery. Call 0333 987 5118 or visit the litigation capacity service page.