Capacity to Litigate Certificate | Capacity to Conduct Proceedings Assessment
A capacity to litigate assessment, also known as a capacity to conduct proceedings assessment, determines whether someone has the mental capacity to understand and participate in legal proceedings under the Mental Capacity Act 2005. This evaluation assesses whether a person can understand the issues and decisions required in litigation, provide coherent instructions to solicitors, and make informed decisions about the conduct of their case. The assessment results in a Certificate as to Capacity to Conduct Proceedings, which is submitted to the court or Official Solicitor.
Trusted by Thousands. Guided by Experience. Committed to You.
6,000+
6,000+ Assessments Delivered
50+ Years
Combined Expertise
99%
Client Satisfaction
100%
Coverage of England & Wales
4.9 ⭐
Understanding Litigation Capacity Under the Mental Capacity Act 2005
Litigation capacity is assessed under the Mental Capacity Act 2005, which establishes whether a person can understand, retain, use or weigh, and communicate information relevant to a decision. The assessment must identify a causative link between any impairment of, or disturbance in, the functioning of the mind or brain and the person's inability to make decisions about conducting proceedings.
Our assessments are guided by the principles established in Dunhill v Burgin [2014] UKSC 18, which confirmed that the relevant question is whether a person has capacity to conduct proceedings—that is, to understand, with appropriate support, the decisions required in the course of litigation and to provide instructions accordingly.
What we Assess
-
Whether the person can understand the issues and potential outcomes of the proceedings, including legal advice and its implications
-
Their ability to give coherent instructions to solicitors and understand the role of legal representatives
-
Whether they can make decisions about conducting the case, including issuing or defending proceedings
-
Their capacity to understand and approve settlements or compromises, including what is being conceded or gained
We use the 2023 revised Certificate as to Capacity to Conduct Proceedings, which reflects the analytical approach endorsed by the Supreme Court in A Local Authority v JB [2021] UKSC 52.
When, Where, Who & How Much — Your Litigation Capacity Questions Answered
Where We Provide This Service
We carry out litigation capacity assessments across England & Wales, with nationwide coverage. Assessments are arranged in the most appropriate setting for the individual:
At home (preferred by over 95% of clients)
In hospital or care settings
Within a solicitor's office
Remotely via secure video where suitable (7-day turnaround option)
Our flexibility ensures accessibility without compromising on legal robustness. All assessments are conducted in accordance with CPR Part 35 requirements and accepted by the Official Solicitor, Court of Protection, and family courts nationwide.
When You'll Need a Litigation Capacity Assessment
A capacity to litigate assessment is required whenever there are concerns about whether an individual has the mental capacity to understand and participate in legal proceedings under the Mental Capacity Act 2005. Common scenarios include:
When a solicitor or barrister is unsure if their client can provide valid instructions or understand legal advice
Where the court requests a Certificate as to Capacity to Conduct Proceedings before continuing with a case
When mental health difficulties, dementia, learning disability or fluctuating capacity raise doubts about ability to conduct litigation
In situations where a party may need to be designated a "protected party" under CPR Part 21, requiring a litigation friend
When disputes could be delayed or derailed without independent, court-ready evidence
Timely, robust assessments protect clients' rights and ensure fair access to justice.
How Much Does a Capacity to Litigate Assessment Cost?
A Capacity to Litigate Assessment is priced at £707.00 (plus VAT and assessor travel).
This fixed fee covers everything you need:
-
A face-to-face or secure video assessment tailored to the individual's needs and the specific decisions required in the proceedings
-
A comprehensive CPR Part 35–compliant report applying the principles established in Dunhill v Burgin [2014] UKSC 18
-
The official Certificate as to Capacity to Conduct Proceedings (2023 revised form) — completed as standard, not an optional extra
-
Secure delivery of both report and certificate within 10–14 working days (with expedited options available for urgent cases)
Every instruction begins with a written fixed-fee confirmation, so you have complete clarity on costs before we start.
Who Can Carry Out a Litigation Capacity Assessment
The courts only accept litigation capacity assessments completed by suitably qualified professionals under the Mental Capacity Act 2005. This includes:
-
Doctors (GPs, psychiatrists, consultants)
-
Registered social workers (BASW members)
-
Health and social care professionals with specialist capacity law training
At Nellie Supports, your assessment is always conducted by a full-time, in-house registered social worker, not a one-off independent contractor. Every assessor is part of our multidisciplinary team, which includes social workers, psychology graduates (BPS), and a chartered psychologist (HCPC) who specialise in mental capacity law.
This structure means:
-
Reports are peer-reviewed by our senior social worker before they reach you, adding another layer of quality assurance
-
You benefit from the combined knowledge and experience of a team that handles 6000+ capacity assessments each year
-
We offer true continuity — our team isn't going anywhere tomorrow. We're here for the long haul to support clients, families, and solicitors through even the most complex proceedings
Every report is therefore consistent, defensible, and legally robust, written to withstand scrutiny in contested cases and trusted by courts across England & Wales.
The Mental Capacity Act 2005: The Foundation
The Mental Capacity Act 2005 establishes a two-stage test for determining whether someone lacks capacity. First, there must be an impairment of, or disturbance in, the functioning of the mind or brain. Second, that impairment or disturbance must cause the person to be unable to make the specific decision in question.
What "unable to decide" means: A person is unable to make a decision if they cannot:
-
Understand the information relevant to the decision
-
Retain that information long enough to make the decision
-
Use or weigh that information as part of the decision-making process
-
Communicate their decision by any means
Our assessors must identify a clear causative nexus—a direct link between any cognitive or mental impairment and the individual's inability to make decisions about conducting proceedings.
Case Law
Dunhill v Burgin [2014]: The Litigation Capacity Test
Our litigation capacity assessments are guided by the principles established in Dunhill v Burgin [2014] UKSC 18, which confirmed that the relevant question is whether a person has capacity to conduct proceedings, that is, to understand, with appropriate support, the decisions required in the course of litigation and to provide instructions accordingly.
In line with this authority, our assessments evaluate whether the individual can:
-
Understand the issues and potential outcomes of the proceedings, including the advice given and the implications of their decisions
-
Give coherent instructions to their solicitors and understand the role of their legal representatives
-
Make decisions about the conduct of the case, including whether to issue or defend proceedings, and how to progress them
-
Understand and approve a settlement or compromise, including what is being conceded or gained
Key principle: The assessment focuses on functional ability, what the person can actually do with appropriate support, not simply their diagnosis or cognitive test scores.
A Local Authority v JB [2021]: The Analytical Approach
We use the 2023 revised Certificate as to Capacity to Conduct Proceedings, which integrates the analytical approach endorsed by the Supreme Court in A Local Authority v JB [2021] UKSC 52. That case reinforced the importance of clearly identifying the "matter" under consideration and the "relevant information" a person must understand, retain, use or weigh, and communicate to make a decision.
Our assessors ensure that each evaluation and certificate explicitly identifies:
-
The specific matter (decision) to which the assessment relates—for example, whether to defend divorce proceedings, whether to accept a settlement offer, or whether to instruct solicitors to issue a claim
-
The relevant information necessary to make that decision—including the nature of the proceedings, potential outcomes, costs implications, and legal advice received
-
The causative nexus between any cognitive or mental impairment and the individual's ability to make decisions in litigation
Why this matters: This structured approach ensures that our certificates are precise, defensible, and meet the exacting standards required when capacity is contested or when the Official Solicitor is considering appointment.
Legal Compliance & Professional Standards
Statutory Principles We Apply
Every assessment is conducted in accordance with the statutory principles in Section 1 of the Mental Capacity Act 2005:
-
Presumption of capacity: A person must be assumed to have capacity unless it is established that they lack capacity
-
Supported decision-making: All practicable steps must be taken to help the person make the decision before concluding they cannot
-
Unwise decisions: A person is not to be treated as unable to make a decision merely because they make an unwise decision
-
Best interests: Any act done for someone who lacks capacity must be in their best interests
-
Least restrictive option: Regard must be had to whether the purpose can be achieved in a way less restrictive of the person's rights and freedom
CPR Part 35 Compliance
All our litigation capacity reports are prepared in accordance with CPR Part 35 and the accompanying Practice Direction. This means:
-
Our assessors understand their overriding duty is to the court, not to the party instructing the assessment
-
Reports contain a statement of truth and comply with all formal requirements
-
We provide clear opinions based on evidence, not advocacy
-
We disclose the basis of our opinions and any limitations
-
We are available to attend court if required and to answer questions from the Official Solicitor or other parties
Result: Reports that are accepted by the Official Solicitor, trusted by courts, and robust enough to withstand scrutiny in contested proceedings.
Why Choose Nellie Supports for Your Litigation Capacity Assessment
When capacity is questioned in legal proceedings, you need more than a tick-box assessment. You need registered social workers who understand both the legal framework and the person behind the case. Here's what sets Nellie Supports apart.
Every assessment is conducted by a full-time, in-house registered social worker who is part of our permanent multidisciplinary team. This isn't a one-off independent assessor you'll never hear from again.
The Nellie Supports difference:
-
Peer review as standard: Every report is reviewed by our senior social worker before delivery
-
Team expertise: Your assessor benefits from the collective knowledge of a team handling thousands of assessments annually
-
Continuity and accountability: We're here for follow-up questions, court attendance, and reassessments if circumstances change
-
Consistent quality: Our structured approach ensures every report meets the same high standard
You're not just hiring an assessor - you're accessing an entire team committed to getting it right.
-
With 6000+ capacity assessments completed, our reports are trusted by courts across England and Wales. We have extensive experience working with:
-
The Official Solicitor
-
Court of Protection
-
Family courts
-
Personal injury litigation
-
Professional negligence proceedings
Our certificates are accepted because they meet the rigorous standards required for contested proceedings and demonstrate clear application of Dunhill v Burgin and A Local Authority v JB.
-
We conduct assessments across England and Wales, with the flexibility to meet individuals where they are:
-
At home (preferred by 95%+ of clients)
-
In hospital or care settings
-
At solicitor's offices
-
Via secure video link (7-day option)
No matter where your client is, we can reach them without compromising on the quality or legal robustness of the assessment.
-
£707 + VAT for a complete litigation capacity assessment. No hidden costs. No surprises.
What's included:
-
Face-to-face or video assessment
-
Comprehensive CPR Part 35 report
-
Certificate as to Capacity to Conduct Proceedings (included as standard, not an extra)
-
Peer review by senior social worker
-
10-14 day turnaround (expedited options available)
-
Post-delivery support and availability for court attendance
Every instruction begins with written fee confirmation. You know exactly what you're paying before we start.
-
A litigation capacity assessment isn't just paperwork. Behind every certificate is a person navigating complex legal proceedings, often during a vulnerable time in their life.
Our approach:
-
We treat every individual with dignity and respect
-
Assessments are conversations, not interrogations
-
We take time to build rapport and reduce anxiety
-
We apply supported decision-making principles, taking all practicable steps to help the person demonstrate capacity
-
We explain the process clearly to the individual and their family
Legal rigour doesn't have to mean clinical coldness. We bring both expertise and empathy to every assessment.
-
Our litigation capacity assessments are led by registered social workers supported by a multidisciplinary team that includes chartered psychologists (HCPC), psychology graduates (BPS), and health professionals.
This combination gives us a unique advantage: we bring both clinical insight and real-world functional understanding to every assessment.
What this means for your case:
-
We evaluate how the individual functions in their everyday environment and relationships, not just in isolated clinical testing
-
We consider fluctuating capacity, the impact of support networks, and the individual's values and preferences
-
We understand the social, relational, and practical factors that affect decision-making in litigation
-
Our reports speak to the functional reality of conducting proceedings, can this person actually instruct solicitors, weigh advice, and participate in their case with appropriate support?
The social work perspective matters because litigation capacity isn't just about cognitive ability, it's about practical engagement with legal processes in real-world contexts.
-
Standard or Advanced Litigation Capacity Assessment?
We offer two levels of litigation capacity assessment to match the complexity of your case and the depth of analysis required. Both assessments are CPR Part 35 compliant and include the Certificate as to Capacity to Conduct Proceedings.
Mental Capacity Assessment
Advanced Mental Capacity Assessment
Our flagship one-visit service for straightforward, decision-specific matters such as routine wills, Lasting Powers of Attorney, property transactions or day-to-day health-and-welfare choices. A registered assessor applies the MCA 2005 two-stage test, adding a MoCA cognitive screen whenever helpful. You receive a clear, CPR 35-compliant report within 5–10 working days—fast, court-ready, and accepted by solicitors nationwide.
Our Capacity to litigate Assessments start at just £707.00
Built on the same gold-standard foundations but engineered for higher-risk, contested or high-value scenarios—large estates, family conflict, suspected undue influence or rapid cognitive change. After a brief phone triage, we complete targeted psychometric tests at Visit 1 and the formal capacity interview at Visit 2. The result is a CPR 35-compliant report plus a plain-English Psychometric Summary that quantifies cognitive, emotional and vulnerability factors—extra armour when a decision may be challenged.
Factor | Mental Capacity Assessment (MCA) | Advanced Mental Capacity Assessment (AMCA) |
|---|---|---|
Risk factors addressed | General mental-capacity concerns; assessor escalates if red-flags appear. | Explicit focus on: financial vulnerability, undue influence, cognitive decline, behavioural risk, grief/anxiety impact and other “evidence-pillar” domains. |
Purpose | Standard capacity assessment for a clearly-defined decision (e.g. Will, LPA, property, health & welfare). | Flagship service for complex, high-risk or contested decisions where ordinary interview evidence may require additional supplementary evidence to create a more robust argument |
Psychometric testing | Montreal Cognitive Assessment completed as required and appropriate | Person-Centred battery: MoCA, Financial Vulnerability Assessment, Financial Decision Tracker and assessor-selected NovoPsych scales. |
Emotional / psychological screening | Not included. | Anxiety, grief, trauma and similar factors measured quantitatively so their real impact (or lack of it) is documented. |
Report & legal robustness | CPR35-compliant capacity report. | CPR35-compliant capacity report plus Psychometric Summary Appendix explaining every score in plain English. |
Assessment structure | One visit – decision-specific capacity interview (plus optional MoCA if required and appropriate). | Telephone consultation → Visit 1: Psychometric testing → Visit 2: Capacity interview (3-step pathway, but two client visits). |
Ideal for | Most everyday legal or financial choices that still require formal capacity evidence. | Large estates, family conflict, suspected undue influence or exploitation, or any matter likely to be challenged. |
Cost | £707.00 | £1203.00 |
Our Process – Step by Step
Call Us to Discuss Your Needs
Contact us by phone, email, or our online form. A senior coordinator will confirm the nature of the proceedings, explain the process, and provide a clear written quotation (including VAT and travel where applicable).
Book a Face-to-Face Appointment
A suitably qualified assessor will meet the client at home, in hospital, a care setting, or via secure video. The assessment is gentle and person-centred, focusing on the functional test (understand, retain, use/weigh, communicate). Where appropriate, cognitive screening tools such as the MoCA may be used to support our findings.
Assessment and Report Writing
The assessor prepares a detailed, CPR 35–compliant expert report. All findings are linked directly to the MCA 2005 four-part test and clearly set out the reasoning behind our professional opinion. Every report is internally peer-reviewed for quality, accuracy, and legal compliance.
Report Delivered Within 10–14 Days
You receive the completed report and certificate within 10–14 working days. Minor amendments are free within 14 days, and our assessors remain available to clarify findings with solicitors, barristers, or the court if required.
Case Study: Capacity to Litigate
When Ms R’s solicitor grew concerned about her ability to participate in ongoing civil proceedings, a litigation capacity assessment was requested. Ms R had a history of fluctuating mental health and her solicitor needed clarity before taking further instructions.
Attempts to obtain evidence from her GP failed — the practice explained they could not complete the Certificate to Conduct Proceedings, and even if they could, they would not provide the detailed analysis the court might require. With deadlines approaching, the case risked delay.
How Nellie Supports Helped
Ms R’s solicitor contacted Nellie Supports and was connected with our litigation assessment coordinator the same day. Within 72 hours:
-
A full-time assessor with Court of Protection and litigation experience was appointed.
-
The assessment was arranged at Ms R’s home, using plain language explanations and visual aids to support understanding.
-
The MCA functional test was applied, alongside litigation-specific questioning about instructions, evidence, risks, and outcomes.
-
A comprehensive CPR Part 35–compliant report was written, peer-reviewed internally, and accompanied by the Certificate to Conduct Proceedings, as required by the court.
The Outcome
Within five working days, the solicitor received both the detailed report and the official certificate. The court accepted the evidence without challenge. It confirmed Ms R did not have litigation capacity, allowing a litigation friend to be appointed promptly and ensuring her rights were protected while proceedings continued without further delay.
Key Takeaway
Many professionals only provide the certificate, leaving courts and solicitors without the detailed evidence needed to defend decisions. At Nellie Supports, every case includes both the Certificate to Conduct Proceedings and a full, legally robust report — ensuring deadlines are met and justice is not delayed.
Insights from Our Blog
Stay up to date with the latest guidance on litigation capacity, Court of Protection rulings, and practical tips for solicitors and families. Our blog breaks down complex legal issues into clear, accessible insights.
Frequently Asked Questions
The face-to-face assessment typically takes 1-2 hours, depending on the complexity of the proceedings and the individual's needs. The full process from instruction to delivery of the completed report and certificate takes 10-14 working days. Expedited options are available for urgent cases.
Yes. We offer secure video assessments with a 7-day turnaround option. However, over 95% of our clients prefer face-to-face assessments for the depth of engagement and rapport-building they provide. We can discuss which approach is most appropriate for your case.
Litigation capacity assessments may be instructed by:
-
Solicitors or barristers representing parties in proceedings
-
Family members concerned about a loved one's capacity
-
The court itself
-
The Official Solicitor
We work with all parties to ensure the assessment meets legal requirements and court timescales.
-
We assess capacity at the time of evaluation and note any factors that may cause fluctuation (medication, time of day, stress, fatigue). Our reports address whether fluctuating capacity affects the individual's ability to conduct proceedings and whether support measures could enable participation. Capacity can be reassessed if circumstances change significantly.
Yes. Our certificates are accepted by the Official Solicitor, Court of Protection, and courts nationwide. We use the 2023 revised Certificate as to Capacity to Conduct Proceedings and ensure all assessments comply with CPR Part 35 requirements and apply the principles established in Dunhill v Burgin [2014] UKSC 18 and A Local Authority v JB [2021] UKSC 52.
If our assessment concludes that the person lacks capacity to conduct proceedings, they become a "protected party" under CPR Part 21. A litigation friend must be appointed to conduct proceedings on their behalf. This may be a family member, professional deputy, or the Official Solicitor. The protected party's views and wishes are still considered, but the litigation friend has decision-making authority about the conduct of the case.
Yes. Our assessors are experienced in providing expert witness testimony and are available to attend court, answer questions from the Official Solicitor, or provide clarification to the court. All our reports are prepared with the understanding that they may be scrutinized in contested proceedings.
Litigation capacity (capacity to conduct proceedings) is more complex than capacity for simpler decisions like managing finances or making a will. It requires the ability to:
-
Understand legal advice and its implications
-
Instruct solicitors and communicate coherent instructions
-
Make decisions about progressing the case
-
Understand and approve settlements or compromises
Each type of capacity is decision-specific under the Mental Capacity Act 2005, so a person may have capacity for some decisions but not others.
-
Yes. We provide litigation capacity assessments nationwide across England and Wales. There are no operational or regulatory differences between the two jurisdictions for our services. We conduct assessments in the individual's home, in hospital or care settings, at solicitor's offices, or remotely via secure video.
A standard litigation capacity assessment costs £707 + VAT (plus assessor travel). This fixed fee includes:
-
Face-to-face or video assessment
-
Comprehensive CPR Part 35 report
-
2023 Certificate as to Capacity to Conduct Proceedings
-
Peer review by senior social worker
-
10-14 working day turnaround
Advanced assessments for complex or contested cases are available. Every instruction begins with written fee confirmation, so you have complete cost certainty before we start.
-
We typically review:
-
Court papers and legal documentation outlining the proceedings
-
Medical records and psychiatric reports
-
Previous capacity assessments (if any)
-
Social care assessments or care plans
-
Any other relevant professional reports
The more context we have, the more tailored and robust the assessment. We'll discuss documentation requirements when you instruct us
-
This depends on the individual's preferences and the assessment requirements. In some cases, family presence can provide support and help the person feel comfortable. In other cases, it's important to assess the individual's independent understanding without influence. We discuss this on a case-by-case basis to ensure the assessment is both supportive and legally robust.
Our reports are evidence-based and apply the legal framework established by the Mental Capacity Act 2005 and relevant case law. If circumstances change or new information comes to light, a reassessment can be arranged. If there are concerns about the assessment process or conclusions, these can be raised with the court, and we are available to answer questions or provide clarification.
Our team at Nellie Supports is made up of experienced social workers and psychologists who specialise in assessing mental capacity and supporting Court of Protection processes.
Our assessors hold qualifications including Bachelor of Science (BSc) in Psychology, Master of Science (MSc) in Psychology, and Bachelor of Social Work (BSW). Each member is professionally registered with their relevant governing body, such as Social Work England, the Health and Care Professions Council (HCPC), or the British Psychological Society (BPS).
Our frontline team is supported by a Chartered Psychologist (HCPC-registered), an SRA-registered solicitor, and a forensic anthropologist, ensuring that our reports meet the highest professional, legal, and ethical standards.
Together, this multidisciplinary team brings academic expertise, legal insight, and practical experience, ensuring every assessment is robust, independent, and compliant with the Mental Capacity Act (2005) and Court of Protection expectations.