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Capacity to Litigate Assessment & Certificate
CPR Part 35–Compliant Litigation Capacity Reports with Certificate Included
If there are concerns about whether an individual can understand and participate in legal proceedings, a capacity to litigate assessment provides the clarity required under the Mental Capacity Act 2005.
At Nellie Supports, every instruction includes both a comprehensive, court-ready expert report and the official Certificate as to Capacity to Conduct Proceedings (2023 revised form) - prepared together as part of a single, structured assessment.
Our role is to provide clear, decision-specific evidence that enables solicitors, courts, and the Official Solicitor to proceed with confidence.
Capacity to Conduct Proceedings Assessment (with Certificate Included)
A capacity to litigate assessment determines whether an individual can understand, engage in, and make decisions about legal proceedings.
Our assessments go beyond simply completing the certificate. We provide a fully reasoned, evidence-based expert report that explains how and why a person does or does not have capacity in relation to litigation.
Each instruction includes:
• A structured, decision-specific capacity assessment
• A CPR Part 35–compliant expert report
• The official Certificate as to Capacity to Conduct Proceedings (2023 format)
• Clear reasoning aligned with MCA 2005 and case law
These assessments are relied upon in civil litigation, Court of Protection matters, personal injury claims, and family proceedings where capacity is in question.
If you need clear, defensible evidence of litigation capacity
A structured, court-ready assessment that determines whether an individual can understand, participate in, and make decisions about legal proceedings, supported by both a detailed expert report and the official capacity certificate.
Our assessments combine legal analysis, functional capacity testing, and decision-specific questioning. We examine the individual’s ability to understand proceedings, weigh legal advice, provide instructions, and make informed decisions, ensuring conclusions are supported by a clear evidential chain.
Prepared in line with the Mental Capacity Act 2005, Dunhill v Burgin [2014], and CPR Part 35, the report and certificate together provide robust, defensible evidence suitable for use in court and by the Official Solicitor.
How We Support You
Structured, Independent Litigation Capacity Assessments You Can Rely On
Clear, Decision-Specific Assessments
We focus on the specific decisions required within legal proceedings, ensuring the assessment directly addresses the individual’s ability to conduct their case.
Each assessment is structured around the exact matters in issue, whether that is giving instructions, understanding advice, or making decisions about settlement. We avoid broad or generic conclusions, instead providing precise, decision-specific analysis aligned with the Mental Capacity Act 2005.
This ensures the outcome is relevant, proportionate, and capable of being relied upon within the context of the proceedings.
We provide an independent, structured review of the individual’s capacity, offering a clear and objective professional opinion that can support or challenge existing evidence.
Where there are concerns about previous assessments, conflicting opinions, or unclear reasoning, our role is to bring clarity. We analyse the functional test, the reasoning applied, and the evidential basis for any conclusions, ensuring the final opinion is properly supported and legally sound.
This allows solicitors and courts to rely on evidence that is transparent, defensible, and clearly reasoned.
Report and Certificate Provided Together
Every assessment includes both a comprehensive expert report and the official Certificate as to Capacity to Conduct Proceedings, prepared as part of a single, aligned process.
The report explains the reasoning in detail, while the certificate provides the formal document required by the court or Official Solicitor. Both documents are prepared together to ensure consistency between findings and conclusions, avoiding gaps or contradictions.
This combined approach ensures the evidence is complete, coherent, and ready for use in proceedings without the need for further clarification.
CPR Part 35–Compliant Expert Evidence
All reports are prepared in accordance with CPR Part 35, ensuring they meet the standards required for expert evidence in legal proceedings.
Our assessors understand that their duty is to the court. Reports are objective, evidence-based, and include clear reasoning, a statement of truth, and full compliance with procedural requirements. We focus on providing opinion, not advocacy.
This ensures the report can withstand scrutiny in contested cases and be relied upon by solicitors, barristers, and the court.
Flexible, Nationwide Assessment Delivery
We provide litigation capacity assessments across England and Wales, arranging appointments in the most appropriate setting for the individual.
Assessments can take place at home, in hospital, in care settings, or within a solicitor’s office. Where appropriate, secure remote assessments can also be arranged to meet urgent timelines or practical constraints.
This ensures the report can withstand scrutiny in contested cases and be relied upon by solicitors, barristers, and the court.
Understanding Litigation Capacity Under the Mental Capacity Act 2005
Litigation capacity is assessed using the two-stage test under the Mental Capacity Act 2005:
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Is there an impairment of, or disturbance in, the functioning of the mind or brain?
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Does that impairment mean the person is unable to make the specific decision required?
A person is considered unable to decide if they cannot:
• Understand relevant information
• Retain that information
• Use or weigh that information
• Communicate their decision
Our role is to identify the causative nexus - the link between any impairment and the inability to make decisions about litigation.
Key Case Law: Dunhill v Burgin & A Local Authority v JB
Our approach is guided by established Supreme Court authority.
Dunhill v Burgin [2014] confirmed that the correct legal test is whether a person can conduct proceedings, including giving instructions and making decisions throughout litigation.
A Local Authority v JB [2021] reinforced the need to clearly define:
• The specific decision being assessed
• The relevant information required
• The reasoning linking impairment to inability
This ensures our reports and certificates are precise, structured, and legally robust.
Our Litigation Capacity Assessment Process
A capacity to litigate assessment is required where there is uncertainty about whether an individual can understand and participate in legal proceedings in line with the Mental Capacity Act 2005. This may arise where a solicitor is unsure whether a client can provide valid instructions, where the court requires a Certificate as to Capacity to Conduct Proceedings, or where cognitive impairment, mental health difficulties, or fluctuating capacity raise concerns. It is also commonly required where a litigation friend may need to be appointed under CPR Part 21, or where proceedings risk delay without clear, independent evidence. Timely, structured assessments ensure that cases can progress appropriately, with decisions supported by clear and defensible capacity evidence.
Step 1 – Initial Enquiry
We confirm the nature of proceedings, the specific decision to be assessed, and any relevant deadlines or court requirements.
Step 2 – Quote & Instruction Confirmation
Based on the information provided, we confirm the appropriate assessment scope and provide a clear written quotation. Once instructed, we carry out any necessary conflict checks and begin arranging the assessment without delay.
Step 3 – Assessment Appointment
A suitably qualified assessor meets the individual at home, in hospital, a care setting, solicitor’s office, or remotely where appropriate. The assessment is person-centred and structured around the Mental Capacity Act functional test.
Step 4 – Report & Certificate Preparation
We prepare a CPR Part 35–compliant expert report alongside the official Certificate as to Capacity to Conduct Proceedings, ensuring both documents are fully aligned and supported by clear reasoning.
Step 5 – Delivery & Follow-Up
You receive both the report and certificate, with availability for clarification, minor amendments, or further professional input if required.
Related Social Work and Care Services
Explore other services provided by Nellie Supports, including mental capacity assessments, Continuing Healthcare support, and expert social work reports.
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Frequently Asked Questions
A capacity to litigate assessment determines whether an individual can understand, participate in, and make decisions about legal proceedings under the Mental Capacity Act 2005. It focuses on the person’s ability to give instructions, understand advice, and make decisions about their case.
Yes. Every instruction includes both a full, CPR Part 35–compliant expert report and the official Certificate as to Capacity to Conduct Proceedings. These are prepared together to ensure consistency and clarity.
Yes. All reports are prepared in accordance with CPR Part 35 and the associated Practice Direction. Our assessors understand their overriding duty is to the court and provide independent, evidence-based opinions.
Assessments are typically requested by solicitors, courts, deputies, or family members where there are concerns about an individual’s ability to conduct proceedings.
It is required where there is doubt about a person’s ability to give instructions, understand proceedings, or make decisions. It may also be required by the court or where a litigation friend is being considered.
If a person is assessed as lacking litigation capacity, the court may appoint a litigation friend to make decisions on their behalf, ensuring their interests are properly represented.
Yes, where appropriate. Assessments can be conducted remotely using secure video, although face-to-face assessments are often preferred depending on the individual’s needs and circumstances.
Typically, we require a brief summary of the proceedings, any relevant legal documents, and background information about the individual. Additional documentation can be reviewed where necessary.
The assessment itself usually takes 1–2 hours. The full process, including report and certificate preparation, is typically completed within standard turnaround times, with expedited options available for urgent cases.
Speak to Our Team About Your Case
Arranging or managing care can feel complex, particularly when needs are changing and important decisions need to be made about support, safety and future planning.
Clear, structured and independent guidance can make a significant difference to how care needs are understood, how support is arranged, and how confident families feel in the decisions being made.
If you would like to discuss your situation, our team can guide you through the options and ensure the right support is put in place clearly, professionally and without unnecessary delay.
Why Solicitors and Families Choose Nellie Supports
Questions around litigation capacity can quickly become complex. Without clear, decision-specific assessment and properly structured evidence, cases can be delayed, challenged, or proceed on an uncertain footing.
At Nellie Supports, we provide independent litigation capacity assessments delivered by qualified, registered professionals with specialist expertise in the Mental Capacity Act 2005 and legal proceedings. Our approach is structured, evidence-based, and focused on ensuring conclusions are clear, defensible, and aligned with court requirements.
Solicitors, families and professionals choose our services because we provide:
• clear, decision-specific capacity assessments grounded in the MCA 2005
• structured, CPR Part 35–compliant expert reports suitable for litigation
• the official Certificate as to Capacity to Conduct Proceedings included as standard
• independent, objective opinions that withstand scrutiny
• consistency and reliability across all reports and instructions
Our work does not sit in isolation. With wider expertise across mental capacity, care funding and legal processes, we ensure that capacity evidence aligns with broader decisions around best interests, litigation strategy, and long-term planning.
Whether you require a single assessment, a professional second opinion, or ongoing input within proceedings, our role is to provide clarity, structure, and confidence at every stage.