# Capacity to Litigate Assessment | Nellie Supports Source: https://www.nelliesupports.com/services/mental-capacity-assessments/mental-capacity-to-litigate-assessment Canonical: https://www.nelliesupports.com/services/mental-capacity-assessments/mental-capacity-to-litigate-assessment # Capacity to Litigate Assessment We assess capacity to conduct legal proceedings and provide a clearly reasoned report for the agreed instruction. The assessment considers the case as a whole, with the advice and support available to the person. Any required certificate is confirmed before booking. We assess capacity to conduct legal proceedings and provide a clearly reasoned report for the agreed instruction. The assessment considers the case as a whole, with the advice and support available to the person. Any required certificate is confirmed before booking. Independent evidence about capacity to conduct proceedings, with any required certificate agreed at instruction. Standard fee, certificate included where required: £960 including VAT Turnaround from assessment visit: 5 working days Nationwide coverage: England and Wales Court-ready reporting: CPR Part 35 ## At a glance ### Decision Conducting legal proceedings ### Legal framework Mental Capacity Act 2005, Masterman-Lister and CPR Part 21 ### Format Usually a home visit; remote assessment is available where appropriate ### Report Litigation capacity certificate plus CPR 35-compliant report, peer reviewed before issue ### Coverage England and Wales ## Who are you arranging this for? The assessment is the same rigorous process whoever instructs it. What changes is what you need to know first. ### I am supporting a family member You may have been told that capacity needs to be checked before a case can proceed. We explain what the assessment concerns and how you can take part with appropriate support. It is not an examination of your legal knowledge or a judgement about whether your claim should succeed. ### I am instructing as a professional Please provide the nature and scope of the proceedings, the substantive issues, available legal advice, relevant orders and any filing deadline. We assess the proceedings as a whole, rather than a single instruction in isolation. The required report, certificate and expert-evidence format are agreed before work begins. ## What is a mental capacity assessment? An independent social-work practice with an employed professional team and peer-reviewed reporting. Explore our [mental capacity assessment services](https://www.nelliesupports.com/services/mental-capacity-assessments) to find the right starting point. Read how we evidence our scale on our [Permanent Team, National Scale](https://www.nelliesupports.com/about-nellie-supports/permanent-team-national-scale) page, and how reports are governed and peer reviewed in our [Professional Standards](https://www.nelliesupports.com/about-nellie-supports/professional-standards). ### What is a mental capacity assessment? A capacity assessment answers a particular question at the relevant time. We help the person take part and consider the decision they face. Under the Mental Capacity Act, any inability to decide must be caused by an impairment or disturbance of mind or brain. Litigation capacity concerns the ability to conduct the identified proceedings with the assistance properly available. The assessment should address the claim or issues the person actually has, rather than assume that the way a case has been presented defines the full capacity question. Capacity to manage money, sign a document or make a particular settlement decision is not automatically the same as capacity to conduct proceedings. We identify the relationship between those questions and the purpose of any separate opinion before accepting the instruction. ## When a capacity to litigate assessment is needed A solicitor, the court or the person themselves may raise a concern about understanding advice, considering evidence or making decisions as a case develops. The assessment considers relevant support and the demands of the actual proceedings. A diagnosis, a difficult presentation or an unpopular instruction does not itself establish incapacity. 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. ### Instructions are in doubt A solicitor is concerned that their client cannot give reliable instructions on the issues the case will turn on. ### CPR Part 21 is engaged The question of whether the party is a protected party who needs a litigation friend has to be answered. ### A settlement is in prospect A settlement is being negotiated and the court may need to approve it, which requires evidence on capacity. ### Brain injury or cognitive change The person has an acquired brain injury, a neurological condition or a cognitive change since proceedings began. ### The court raises the question The court, the other side or the Official Solicitor has asked for the party's litigation capacity to be evidenced. ### Family or Court of Protection proceedings The person is a party to proceedings and their ability to participate and instruct is in question. ## What this assessment covers This assessment addresses the person's capacity to conduct the particular proceedings in question. It is decision-specific: the assessor tests the actual case in front of the person, not a general impression. In line with the Mental Capacity Act 2005, and following Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889 and Dunhill v Burgin [2014] UKSC 18, the assessment considers whether the person can understand, retain, use or weigh the information relevant to the decisions the case will require of them, with the benefit of legal advice. That information typically includes: ### What the proceedings are about, and what they are seeking to achieve by bringing or defending them ### The main issues on which they will be asked to give instructions ### The options open to them, including settling, continuing or discontinuing ### The likely consequences of each option, including costs, risk and the possibility of losing ### The role of their solicitor, and that they can seek and act on advice before deciding ### What would happen if they could not conduct the case themselves, including the appointment of a litigation friend ## The relevant information must be tailored A modest, straightforward claim is not the same decision as a complex claim turning on competing expert evidence and a substantial settlement. The assessor identifies the information that is genuinely relevant to the proceedings in question. ## An unwise decision is not the same as lacking capacity A party may take a view on their case that their advisers would not take. The issue is whether the person can make the relevant decision, not whether others agree with it. ## 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: 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 sections 1–3; the applicable Civil or Family Procedure Rules; Dunhill v Burgin [2014] UKSC 18. Expert-report requirements and the form of any capacity certificate are separate from the capacity test. Read the supporting guidance ### 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 ## Our process for capacity to litigate assessments ### Initial enquiry and triage Tell us the decision, who needs the report and any deadline. We discuss the person’s needs and confirm the right service before booking. ### Quotation and booking Receive a written scope, fee including applicable VAT and agreed timetable. Travel and any additional work are explained before you proceed. ### Assessment appointment The assessor meets the person in an appropriate setting, explains the relevant information clearly and provides the support they need to 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 Receive the report securely, with its findings and any limitations clearly explained. We respond to clarification requests within the agreed scope. ## Evidence we review We review the documents relevant to the question and explain how to share them securely. The report distinguishes records, the person’s own responses and information supplied by others. ### Medical records GP summaries, hospital letters, neuropsychology and any information about diagnosis or treatment that bears on decision-making. ### The case papers Pleadings, key correspondence and expert evidence, so the assessment addresses the decisions this case actually requires. ### Attendance notes The solicitor's record of how the person has engaged with advice and instructions to date. ### Previous assessments Earlier capacity assessments, cognitive testing or social care assessments, where these exist. ### Care and support records Care plans and daily notes that describe how the person manages complex information day to day. ### Accounts from people who know the person Observations from family, friends and professionals about how the person handles decisions in practice. ## 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 ## Is your case more complex? The assessment and fee on this page cover our standard service, which is suitable for most instructions. If your case is more complex, high-risk or potentially contested, additional evidence may help. We can advise on the appropriate scope before booking. [Explore Advanced and Enhanced assessments](https://www.nelliesupports.com/services/mental-capacity-assessments/complex-capacity-assessments) ## Fees and timescales £960 including VAT Standard fee, including the Certificate as to Capacity to Conduct Proceedings where required. Displayed service fees include VAT. Travel costs are confirmed separately. If your case needs additional evidence, follow the Advanced and Enhanced assessments link below to explore the scope and fees. Travel time is charged at £48 per hour including VAT (£40 excluding VAT) where applicable and is confirmed before booking. The standard service includes a litigation capacity certificate and a CPR 35-compliant report. ### 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 ## 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 choose Nellie Supports for your mental capacity assessment The value of the service lies in the assessment and the explanation behind it: the relevant expertise, a supported process, careful use of records and a written opinion that others can examine. Our role is to provide independent evidence within the agreed instruction. ### For families Know the work, cost and timetable before booking. We agree the appointment arrangements around the person’s needs and explain what the completed report will include. ### For professionals An employed professional team, with relevant expertise and a second professional reviewing the report. We agree the appropriate assessor and written output for your instruction. ## 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? A formal diagnosis is not always essential. The evidence must establish any relevant inability and its connection to an impairment or disturbance of mind or brain. Screening may contribute information, but a score alone does not diagnose a condition or establish litigation incapacity. ### What happens if the person lacks capacity to litigate? A finding of incapacity does not mean the underlying claim disappears. The court and legal representatives must address the applicable rules, including whether a litigation friend is required and what steps can be taken. Our report supplies evidence; it does not itself appoint a litigation friend or authorise the proceedings to continue. ### 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?](https://www.nelliesupports.com/guides/what-is-capacity-to-conduct-proceedings) The decision, the test and who assesses it ### [Relevant information for litigation capacity](https://www.nelliesupports.com/guides/relevant-information-for-litigation-capacity) What the person needs to understand ### [Protected parties and litigation friends explained](https://www.nelliesupports.com/guides/protected-parties-and-litigation-friends-explained) How proceedings continue where a person lacks capacity ### [Evidence needed for a litigation capacity report](https://www.nelliesupports.com/guides/evidence-needed-for-a-litigation-capacity-report) What strengthens the assessment and the report ### [Court-ready capacity to litigate assessments](https://www.nelliesupports.com/guides/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. We provide independent assessment and professional evidence. Legal advice and court applications remain with the relevant legal adviser. ## Book a capacity to litigate assessment Tell us about the proceedings and the decision in question and we will confirm whether a Standard, Advanced or Enhanced assessment is right, whether the certificate is needed, the fee, and the earliest appointment. Reports are typically delivered within 5 working days of the assessment visit. ## What this assessment covers ### The functional test ### Impairment and causation For the framework in full, read our guide: [what is capacity to conduct proceedings](https://www.nelliesupports.com/guides/what-is-capacity-to-conduct-proceedings). ## How we support decision-making The Mental Capacity Act 2005 requires that no one is treated as unable to make a decision unless all practicable steps to help them have been taken without success. That support is built into every assessment: ### Plain language and real examples Decisions are explained using the person's own circumstances and the decision actually in front of them, rather than abstract scenarios. ### The right time and place Appointments are arranged for when the person functions best, at home, in a care setting, in hospital or remotely. ### A familiar person nearby A relative, friend or carer can be close at hand where that reassures, while the assessment itself remains independent. ### Communication adjustments More time, information broken into stages, and written notes or aids where they help the person express a view. ## For solicitors, deputies and other professionals Instruction is straightforward and the evidential standard is consistent whichever decision is being assessed: ### Scope confirmed in writing The decisions to be assessed, the fee and the timescale are confirmed in writing before instruction. ### A traceable evidential line Evidence, analysis and conclusion are set out in a structure a court, bank or public body can scrutinise. ### Peer review as standard A second qualified professional reviews every report before it leaves the practice. ### Follow-up clarification Clarification for instructing parties is included after the report is delivered. ## Where do you cover? Assessments are carried out across England and Wales, at home, in care settings, in hospital or remotely where appropriate. Travel is charged at £48 per hour including VAT (£40 excluding VAT) and confirmed before booking. ## Who will carry out the assessment? A registered professional from our permanent, employed team, which includes Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional before delivery. ## [Personal injury mental capacity](https://www.nelliesupports.com/services/mental-capacity-assessments/personal-injury-capacity-assessment) Decision-specific capacity evidence for personal injury and clinical negligence claims. ## [Capacity to Manage Finances](https://www.nelliesupports.com/services/mental-capacity-assessments/mental-capacity-assessment-to-manage-finances) Independent, decision-specific assessment of capacity to manage money, property and financial affairs. ## [COP3 mental capacity assessment](https://www.nelliesupports.com/services/mental-capacity-assessments/cop3-mental-capacity-assessment) For Court of Protection deputyship applications. ## Book a capacity to litigate assessment Written by [Ben Slater, Founder and Managing Director, Nellie Supports](https://www.nelliesupports.com/team/ben-slater). Read our [editorial policy](https://www.nelliesupports.com/editorial-policy). ## How The Nellie Standard™ Applies to Litigation Capacity Assessments This service is delivered in accordance with The Nellie Standard™, Nellie Supports’ framework for evidence-led assessment, reporting and advocacy. The Nellie Standard™ guides evidence-led work: a clear question, the right framework, appropriate support and reasoning you can follow. The report addresses the person’s ability to conduct the proceedings as a whole, with relevant advice and support. It identifies the issues, information and decisions considered, their responses and the analysis supporting the conclusion. Any separate question about managing compensation or another transaction is identified rather than assumed to have the same answer. Complex work may require additional evidence or assessment. We explain the reason, proposed scope and cost before you decide to proceed. Evidence before opinion; Correct test first; Litigation-specific analysis; Transparent reasoning; Clear conclusions; Capable of scrutiny ## Our Therapeutic Assessment Approach to Litigation Capacity Assessments The assessment is a supported professional conversation. We explain what is happening, allow time and help the person participate. We start with the presumption of capacity and take practicable steps to help the person decide for themselves. The assessor uses clear language, appropriate pacing and communication support. A reassuring approach helps the person take part without directing their answers. The report addresses the proceedings as a whole and the support available, with clear reasoning about the person’s ability to conduct the case. A supportive assessment and careful reporting belong together. The report explains the person’s responses, the evidence considered and the reasoning behind the opinion. The report sets out the evidence and reasoning in clear language, so you and the professionals involved can understand the findings and next steps. ## Litigation Mental Capacity Assessment Case-specific litigation capacity assessment, written report and completion of a litigation certificate where required. £960 including VAT (£800 net; £160 VAT). --- Nellie Supports Ltd · 0333 987 5118 · nellie@nelliesupports.com Office 11 and 12, Unit 20, Springfield Business Park, Grantham, NG31 7FZ