Mental Capacity to Litigate Assessment
Helping You or a Loved One Navigate Court Proceedings with Confidence
Solicitors and courts require clear, CPR 35–compliant evidence when questions arise about a person’s ability to conduct legal proceedings. At Nellie Supports, we provide both a comprehensive MCA 2005–compliant capacity report and the official Certificate to Litigate (Certificate of Capacity to Conduct Proceedings) — at no additional cost. This dual approach ensures the evidence is court-ready, legally robust, and compliant with the standards set out in Masterman-Lister v Brutton & Co and subsequent case law.
Facing court can feel overwhelming, especially if you’re worried that your loved one might not fully understand what’s happening. Our team provides compassionate, independent assessments that check whether a person can instruct a solicitor, weigh legal advice, and engage in the process. By offering both a detailed report and a formal certificate accepted by the courts, we give families clarity, reassurance, and the evidence needed to protect their loved one’s rights.
5000+
Cases
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Client Satisfaction
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Combined Years of Experience
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5-star ratings on Google
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Members of Our Team
Why Capacity to Litigate Matters
Litigation capacity is central to fairness in the justice system. Without clear evidence, individuals risk being drawn into proceedings they cannot fully understand, entering into unfair settlements, or being excluded from decisions that directly affect their lives.
Case law such as Masterman-Lister v Brutton & Co [2002] and Dunhill v Burgin [2014] confirms that litigation capacity is not about managing a case alone, but about being able to instruct solicitors, weigh legal advice, and participate meaningfully in proceedings.
That’s why courts, solicitors, and families need more than just a written opinion. They need formal evidence that meets both clinical and procedural requirements.
At Nellie Supports, we provide both:
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A CPR 35–compliant MCA 2005 report — a full narrative assessment that evidences the causal link between impairment and decision-making difficulties.
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The official Certificate of Capacity to Conduct Proceedings (“Certificate to Litigate”) — completed at no additional cost, ensuring the court has the formal documentation it requires.
By combining these two, we give solicitors, families, and the courts confidence that capacity has been tested fairly, robustly, and in a way that is legally watertight. This reduces the risk of challenge, avoids unnecessary delays, and protects the rights of vulnerable people.
When, Who & How Much – Your Litigation Capacity Questions Answered
We understand that arranging a litigation capacity assessment can feel daunting. Whether you’re a solicitor preparing evidence for court or a family member supporting a loved one, here’s what you need to know about when an assessment is required, who can complete it, and how much it costs.
When Do You Need a Litigation Capacity Assessment?
A litigation capacity (or capacity to conduct proceedings) assessment is required when there are concerns that a person may not be able to:
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Understand the nature of the proceedings and possible outcomes.
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Provide clear or coherent instructions to their solicitor.
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Weigh up legal advice to make informed decisions.
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Engage with the process, including deadlines, evidence, and hearings.
In these cases, the court may require both a full CPR 35–compliant report and a Certificate to Conduct Proceedings (“Certificate to Litigate”) before appointing a litigation friend or involving the Official Solicitor. At Nellie Supports, we provide both — with the certificate included at no additional cost.
Who Can Complete a Litigation Capacity Assessment?
The courts will only accept a litigation capacity assessment and certificate if they are completed by an appropriately qualified professional, such as:
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A doctor (GP, psychiatrist, or consultant).
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A registered social worker.
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A health or social care professional with expertise in assessing mental capacity.
At Nellie Supports, every assessment is completed by an experienced professional with specialist training in capacity law and the use of clinical tools such as the MoCA (Montreal Cognitive Assessment). This ensures we can evidence both the impairment of the mind or brain and the causal link to the person’s ability to litigate, meeting the strict requirements of the Mental Capacity Act 2005.
How Much Does It Cost?
A Capacity to Litigate Assessment costs £707.00 (exclusive of VAT and travel).
This includes:
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A face-to-face or secure video assessment.
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A full MCA 2005–compliant, CPR 35–ready report.
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The Certificate to Conduct Proceedings / Certificate to Litigate (included at no extra charge).
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Delivery of your report and certificate within 10–14 working days.
Is a Formal Diagnosis Required for a Residency Capacity Assessment?
No Requirement for a Formal Diagnosis
No — a formal medical diagnosis is not required for the court or professionals to accept a litigation capacity assessment.
What matters is whether there is clear evidence of an impairment or disturbance in the functioning of the mind or brain that causes the person to be unable to:
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Understand information relevant to the proceedings (e.g. the nature of the case, the possible outcomes, the role of their solicitor, the consequences of costs).
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Retain that information long enough to make decisions about the case.
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Use or weigh that information when considering legal advice, risks, and options.
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Communicate their instructions to a solicitor or the court.
At Nellie Supports, all of our assessors are accredited in the Montreal Cognitive Assessment (MoCA). We use this validated psychometric tool where appropriate to demonstrate whether there is evidence of impairment of the mind or brain. This goes beyond observation alone, providing measurable cognitive data alongside expert clinical judgment.
By linking this evidence directly to the person’s ability to litigate, we establish the causal nexus required under the Mental Capacity Act 2005. This means our reports are not only robust and CPR 35–compliant, but also defensible in cases where there is no formal diagnosis, reducing the risk of later legal challenge
Legal and Procedural Clarity
Our litigation capacity assessments are carried out in strict accordance with the Mental Capacity Act 2005 (MCA 2005), the Civil Procedure Rules (Part 21), and the Family Procedure Rules (Part 15). These set the legal framework for determining when someone can, or cannot, conduct their own legal proceedings.
Key points that guide our approach:
Decision-Specific
Litigation capacity is not a blanket ability. It relates specifically to whether the person can conduct the proceedings they are involved in. This means they must be able to give coherent instructions to their solicitor and understand the nature and risks of the case — not necessarily manage the entire process alone.
Four-Part Functional Test
We evidence whether the person can:
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Understand the relevant information (e.g. the nature of the proceedings, their role, possible outcomes, and the role of a litigation friend).
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Retain that information long enough to make informed decisions.
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Use or weigh that information when considering legal advice, evidence, risks, and costs.
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Communicate their instructions, whether verbally, in writing, or by other means.
CPR 35-Compliant Expert Evidence
All our reports are written to CPR 35 standards, meaning they are suitable for use as expert evidence in court. This ensures that solicitors, barristers, and judges can rely on our findings when deciding how a case should proceed.
Case Law Support
Our approach to assessing litigation capacity is firmly grounded in legal precedent. The following cases guide both our practice and the courts’ expectations:
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889
The Court of Appeal confirmed that the test for litigation capacity is issue-specific. A person does not need to manage proceedings unaided, but must be able to conduct their case with the support of a solicitor. This ensures individuals are not unfairly excluded simply because legal processes are complex.
Dunhill v Burgin [2014] UKSC 18
The Supreme Court held that capacity must be assessed in relation to the proceedings as a whole, not just individual steps. A settlement reached by someone lacking capacity was declared invalid. This case shows why assessments must be comprehensive and reports CPR 35–compliant.
Sheffield City Council v E [2005] EWHC 2806 (Fam)
This case highlighted the importance of tailored assessments. Courts expect assessors to provide information in a way the individual can understand, and to use all practicable support before concluding that someone lacks capacity.
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.
Areas we cover
We provide litigation capacity assessments across England and Wales, either face-to-face or via secure video link. Our assessors regularly support clients in:
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Major cities such as London, Manchester, Birmingham, Leeds, and Cardiff.
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Surrounding towns and regions.
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Rural and remote communities where specialist support can be harder to access.
Wherever you are, you’ll receive the same high-quality, MCA 2005–compliant and CPR 35–compliant service, with assessments tailored to your needs and timescales.
Because litigation capacity often overlaps with other important decisions, we also offer a full range of related assessments and services, including:
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Expert Appeals and Reports – specialist support for EHCPs, tribunals, and complex court proceedings.
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Care Services and Case Management – helping families and professionals navigate care planning and ongoing support.
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COP3 Mental Capacity Assessments – required when a deputy is appointed by the Court of Protection.
Case Study: Selling Property to Move Closer to Family
When Ms B’s solicitor contacted us, they were supporting a client involved in a civil claim where there were concerns about her ability to provide consistent instructions. Ms B often became confused about court deadlines, struggled to weigh the risks of accepting a settlement, and gave contradictory responses when asked to make important decisions.
The solicitor needed a clear, legally robust capacity assessment to determine whether Ms B had the ability to litigate, ensuring that any decisions made during proceedings would be valid and protected from later challenge.
The client’s difficulties meant that information had to be explained carefully and in plain terms. While Ms B was able to engage with some aspects of the case, the solicitor was concerned that she could not fully understand the implications of settlement offers or the potential costs involved in continuing proceedings. To safeguard both Ms B and the case, an independent assessment was required.
When the case was referred to Nellie Supports, our specialist assessment coordinator made same-day contact with the solicitor to gather background details and arrange an appointment. Within 72 hours, one of our experienced assessors visited Ms B at home, where she felt most comfortable.
The assessment was carried out in line with the Mental Capacity Act 2005 functional test. To support the findings, our assessor used the Montreal Cognitive Assessment (MoCA) to provide measurable evidence of impairment alongside professional judgment. The process was adapted to Ms B’s needs by breaking information into short sections, using supportive questions to check understanding, and ensuring the pace was entirely client-led.
The assessment confirmed that Ms B lacked the capacity to litigate. This enabled her solicitor to apply for the appointment of a litigation friend, ensuring her interests were protected. Our detailed, CPR 35–compliant report provided clear, defensible evidence, giving the solicitor confidence while reassuring Ms B’s family that the proceedings would continue fairly and with her rights safeguarded.
Why Choose Nellie Supports?
Choosing the right professionals to assess mental capacity is vital. At Nellie Supports, we combine expertise, empathy, and efficiency to make the process as smooth as possible. Our multidisciplinary team includes registered social workers, nurses, and specialists who bring decades of combined experience in capacity law and practice. Every assessment is conducted with compassion and clarity, always tailored to the person’s unique circumstances.
Experience peace of mind with our comprehensive social work services at Nellie Supports. Our team of registered and experienced professionals is dedicated to providing exceptional care and support. From mental capacity assessments to a wide range of social work services—such as EHCP appeals, life expectancy reports, and ongoing consultancy—our experts ensure accurate evaluations, personalised guidance, and the highest standards of practice.
We understand how important these decisions are, whether you’re planning for the future or responding to urgent legal requirements. That’s why our reports are consistently prepared to the highest standards, fully compliant with the Mental Capacity Act 2005, and accepted by courts and solicitors across England and Wales.
With a 4.9-star rating from clients nationwide, prompt response times, and a commitment to clear communication at every step, Nellie Supports is trusted by families, deputies, and professionals alike.
