Mental Capacity Assessment
Capacity to Litigate Assessment
Court-ready assessments of capacity to conduct proceedings, including the official certificate where required.
A capacity to litigate assessment is a decision-specific assessment of whether a person can understand, engage in and make decisions within legal proceedings, applying the Mental Capacity Act 2005. It is used where there is genuine doubt about whether someone can properly take part in a case, and produces the evidence the court or Official Solicitor needs, including, where required, the Certificate as to Capacity to Conduct Proceedings.
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£800 + VAT
Standard fee, certificate included where required
5 working days
Typical turnaround
England and Wales
Nationwide coverage
CPR Part 35
Court-ready reporting
Nellie Supports is England and Wales' largest identified specialist private social work and mental capacity assessment practice, delivered by a permanent full-time team. Services are provided by employed, multidisciplinary professionals, not an ad hoc associate, contractor or referral-panel model. We have completed over 11,000 formal assessments and reports. This service sits alongside our full range of mental capacity assessment services.
When a capacity to litigate assessment is needed
A capacity to litigate assessment is usually needed when there is genuine doubt about whether a person can properly take part in legal proceedings. This often arises in personal injury, clinical negligence, divorce, family and other civil cases.
It commonly arises where there are concerns about brain injury, dementia, mental illness, learning disability, cognitive difficulty or fluctuating presentation. The issue is not whether the person seems vulnerable or has a diagnosis, but whether they can understand, engage in and make the specific decisions that the proceedings require.
The legal test we apply
Capacity to litigate is assessed under the Mental Capacity Act 2005, applied to the specific proceedings in question. The functional test asks whether the person can:
Understand the information relevant to conducting the proceedings, including the issues, the advice and the decisions to be made
Retain that information long enough to make each decision
Use or weigh that information as part of making the decision
Communicate their decision by any means
The question is whether any impairment affects the person's ability to conduct these specific proceedings, not whether they have a diagnosis. Our reports show a clear chain of reasoning from impairment, to functional impact, to conclusion, and where required we complete the official Certificate as to Capacity to Conduct Proceedings as part of the same instruction.
Framework: Mental Capacity Act 2005 ss 1 to 3; CPR Part 21 on protected parties; Masterman-Lister v Brutton and Co [2002] EWCA Civ 1889. Reports prepared to CPR Part 35 standards.
For the framework in full, read our guide: what is capacity to conduct proceedings.
Our process for capacity to litigate assessments
Initial enquiry and triage
We gather the key details of the case, identify the proceedings and the decisions in question, and confirm whether the certificate is required. We also advise whether a standard or enhanced assessment is appropriate.
Quotation and booking
We provide a clear, upfront quotation including VAT and any travel costs, and arrange the assessment as quickly as possible.
Assessment appointment
A qualified assessor meets the person at home, in a care setting, in hospital or by secure video. The assessment is a supportive, structured conversation, taking practicable steps to help the person take part.
Report and certificate
We prepare a fully reasoned, CPR Part 35 compliant report and, where required, complete the Certificate as to Capacity to Conduct Proceedings as part of the same instruction. Each report is peer reviewed before release.
Secure delivery
The completed report and certificate are delivered securely, with clarification available for the instructing solicitor after delivery.
Inside a Nellie Supports report
Every report shows a clear chain of reasoning, from impairment to functional impact to the conclusion on capacity, so it can be understood and scrutinised.
Instruction and the specific proceedings assessed
Documents and records reviewed
Relevant information for conducting the proceedings
Practicable steps taken to support participation
Impairment and its functional impact
Analysis against the Mental Capacity Act 2005 test
Conclusion, professional opinion and certificate where required
Limitations, declarations and CPR Part 35 matters
Fees and timescales
£800 + VAT
VAT at 20% and travel costs are not included. Enhanced: £3,500 + VAT.
A decision-specific capacity to litigate assessment under the Mental Capacity Act 2005
The Certificate as to Capacity to Conduct Proceedings, completed where required at no additional cost
A fully reasoned, CPR Part 35 compliant expert report
Montreal Cognitive Assessment (MoCA) where appropriate to support impairment evidence
A therapeutic, person-centred approach that supports participation
Assessment by MCA-trained registered social workers, peer reviewed before release
Travel charged at £40.00per hour
Standard or Enhanced, which level of evidence does your case need?
For many cases a standard assessment provides clear, court-ready evidence and, where required, the official certificate. For complex, disputed or Court of Protection matters, an enhanced assessment provides a deeper evidential foundation.
Standard Assessment
£800 + VAT
- Decision-specific capacity to litigate assessment
- Certificate as to Capacity to Conduct Proceedings where required
- CPR Part 35 compliant expert report
- MoCA where appropriate
Suitable for most cases where litigation capacity is in question.
Enhanced Assessment
£3,500 + VAT
- Extended, multi-layered assessment process
- Targeted psychometric input where appropriate
- Broader evidential framework and vulnerability assessment
- CPR Part 35-ready reporting for disputed or Court of Protection matters
For complex, disputed or Court of Protection matters.
A full-time, multidisciplinary team
Nellie Supports is built on an employed, permanent team: registered social workers, a Chartered Psychologist and specialist assessors working together to one standard, with every report peer reviewed by a second qualified professional. Your assessment is never passed to an associate bank or referral panel.
The right professional for the decision
Capacity questions range from care and residence to complex cognition and prognosis. A multidisciplinary team means the discipline is matched to the decision, not to whoever is available.
One consistent standard
The team works together full time, so every assessment follows the same methodology and peer review is built into every report rather than bolted on.
Accountability you can name
Your report is signed by an employed professional who answers for their work, and the practice stands behind it.
Continuity, not hand-offs
The people who take your enquiry, carry out the assessment and review the report all work in one practice, so nothing is lost between stages.
How this works in practice
The situation
A solicitor acting in a clinical negligence claim was concerned that their client, who had a cognitive impairment following a serious illness, might not be able to give reliable instructions or make decisions about the case. They instructed Nellie Supports to assess the client's capacity to conduct the proceedings.
The assessment
The assessment was carried out as a supportive, structured conversation, applying the Mental Capacity Act 2005 to the specific decisions the litigation required, from understanding the issues to weighing advice about how the case should proceed. Cognitive screening was used to help evidence the underlying impairment.
The outcome
The assessment concluded that the client could not, at that time, use and weigh the information needed to conduct the proceedings, and the report set out clear reasoning for that view. Where a person lacks litigation capacity, the case can continue with a litigation friend, and the Certificate as to Capacity to Conduct Proceedings was completed as part of the same instruction.
This is an illustrative example, drawn from the common features of the litigation capacity cases we assess. It does not describe any individual client.
Why solicitors and litigation teams choose Nellie Supports
Litigation specialists
Decision-specific assessments applying the legal test to the proceedings, not a general clinical opinion.
The certificate included
Where required, the official Certificate as to Capacity to Conduct Proceedings is completed as part of the same instruction, at no additional cost.
CPR Part 35 ready
A fully reasoned expert report prepared for use in proceedings.
A clear chain of reasoning
From impairment, to functional impact, to conclusion, so the opinion can be tested.
Therapeutic and supportive
The assessment supports the person to take part as fully as possible, rather than testing to catch them out.
Independent and balanced
We do not work to a predetermined outcome. An independent report is more likely to withstand challenge.
Capacity to litigate FAQs
What is capacity to litigate?
It is whether a person can understand, engage in and make decisions within legal proceedings. The issue is not whether they seem vulnerable or have a diagnosis, but whether they can conduct the specific proceedings in question.
Do you complete the Certificate as to Capacity to Conduct Proceedings?
Yes. Where the court or Official Solicitor requires it, we complete the official certificate as part of the same instruction, at no additional cost. We also provide a fuller, CPR Part 35 compliant expert report to support the opinion.
Is a diagnosis required?
No. What matters is whether an impairment affects the person's ability to conduct the proceedings. Where there is no formal diagnosis, cognitive screening such as the MoCA can help evidence an impairment or disturbance in the functioning of the mind or brain.
What happens if the person lacks capacity to litigate?
The proceedings do not stop. Where a person lacks litigation capacity, the case can continue with a litigation friend acting on their behalf, and our report and certificate provide the evidence the court needs.
Can capacity to litigate change during a case?
Yes. Capacity can fluctuate, and it is decision-specific and time-specific. A person may have capacity for some decisions but not others, or their capacity may change as the case develops, which is why the assessment relates to the specific decisions at the relevant time.
Will you provide a report that supports our case?
No. Our role is an independent, objective assessment. We do not work to a predetermined outcome. An independent, well-reasoned report is more likely to withstand scrutiny.
Litigation capacity guides
What is capacity to conduct proceedings?
The decision, the test and who assesses it
Relevant information for litigation capacity
What the person needs to understand
Protected parties and litigation friends explained
How proceedings continue where a person lacks capacity
Evidence needed for a litigation capacity report
What strengthens the assessment and the report
Court-ready capacity to litigate assessments
What makes a report stand up in proceedings
Other assessment types
If you need a wider personal injury capacity assessment, an assessment for managing compensation, or a Court of Protection COP3, our team can help.
Personal injury mental capacity
Decision-specific capacity evidence for personal injury and clinical negligence claims.
Capacity to Manage Finances
Independent, decision-specific assessment of capacity to manage money, property and financial affairs.
COP3 mental capacity assessment
For Court of Protection deputyship applications.
Nellie Supports provides independent social work assessment, evidence and advocacy support. We do not provide regulated legal advice, and where a legal remedy is needed we will say so and support your solicitor's work.
Book a capacity to litigate assessment
Tell us about the proceedings and the decision in question and we will confirm whether a standard or enhanced assessment is right, whether the certificate is needed, the fee, and the earliest appointment.
Written by Ben Slater, Founder and Managing Director, Nellie Supports. Read our editorial policy.