GUIDES
A litigation capacity report needs the case papers, an account of how the person engages with advice, relevant health evidence and direct assessment findings. The opinion should connect the demands of the properly framed proceedings with the person’s abilities and the support available.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
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A litigation capacity report needs the case papers, an account of how the person engages with advice, relevant health evidence and direct assessment findings. The opinion should connect the demands of the properly framed proceedings with the person’s abilities and the support available. This guide covers the relevant evidence, support, process and limits in England and Wales.
A litigation capacity report needs the case papers, an account of how the person engages with advice, relevant health evidence and direct assessment findings. The opinion should connect the demands of the properly framed proceedings with the person’s abilities and the support available. Distinguish litigation capacity from capacity for the underlying matter and for managing any award. The report informs the court rather than determining the procedural outcome.
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 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. The legal test concerns retaining relevant information long enough to make the decision, with practicable support; it does not impose a general requirement to remember it for weeks or months.
Relevant medical and care records may help identify an impairment, its course and any change over the case. Do not assume stress or distress is incapable of affecting the mind or brain; equally, difficult emotions alone do not establish lack of capacity. Explain whether an identified impairment or disturbance causes the decision-making inability.
Assess the person’s ability to engage with their actual case and legal advice, including the significant choices, risks and consequences. Record responses and the effect of support accurately. Short retention is enough if it enables decision-making; do not make unsupported recall of every detail a substitute test.
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.
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.
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.
Identify the properly framed proceedings, sources, information, support, findings and causal reasoning, and state the scope and limits. Follow CPR Part 35 where applicable and any court directions. The same report may inform several procedural questions, but the court decides what evidence and orders each requires.
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.
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.
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.
Raise genuine doubt with the litigation solicitor promptly, before significant steps where possible. The solicitor can address supported participation, any need for a litigation friend, court directions and approval. A report does not itself reverse past steps or confer procedural authority.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Assemble the case papers, relevant records and an account of practical support. Explain any difference between the case as pleaded and the claim properly available, and flag separate questions about managing damages.
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