Capacity to Litigate Assessment

A capacity to litigate assessment may be needed when someone lacks the ability to manage legal proceedings. Either a litigation capacity report or litigation capacity certificate can be prepared.  If you are have a client who may lack capacity to litigate, please get in touch.


What is meant by Mental Capacity Assessment to Litigate?

It is an assessment in which the mental capacity of a person to take part in legal proceedings is assessed. Assessing the mental capacity  to litigate is advised following recent case law and guidance from the Official solicitor.

Someone who lacks capacity to litigate may require a litigation friend to be appointed.

What is the Law under which the Litigation Capacity Assessment regulated?

A litigation capacity assessment in personal injury cases falls under the legal test laid out in the Supreme Court Ruling Dunhill v Burgin case. In this case, the test was laid down according to which a person can litigate for his or her own matter.

However, in all cases where litigation capacity is assessed the principles of the Mental Capacity Act 2005 are relevant.

According to 2014 guidance from the Official Solicitor, in an assessment of litigation capacity the following considerations should be borne in mind:

  • the party or intended party would need to understand how the proceedings were to be funded;
  • they would need to know about the chances of not succeeding and the risk of of an adverse order as to costs;
  • They will need to have capacity to make the sorts of decisions that arise in litigation;
  •  capacity to conduct proceedings would include the capacity to give proper instructions for and to  approve the particulars of claim, and to approve a compromise;
  •  for a party or intended party to have capacity to approve a compromise, they would need insight into compromise, and ability to instruct solicitors to advise them on it or an understanding of their advice and an ability to weigh their advice.

The Civil Procedure Rules state that a person should have a litigation friend who will be conducting the proceedings on his or her behalf. 

Why is it important to conduct a Mental Capacity Assessment to Litigate?

Mental capacity assessment for litigation can help the client in realising what he or she is getting into by wanting to litigate their own legal matter.

It will them in identifying whether a better legal help is required by them or not. Moreover, they will be able to ascertain whether they have the mental capacity to deal with all the procedures of an ongoing case and whether they are able to understand the complexities of a legal matter. Furthermore, the client will be allowed to voice his or her opinion throughout the assessment. 

What is the normal process for a Capacity Assessment to Litigate?

A mental capacity assessment to litigate can be conducted via video link or in-person if the individual is comfortable in doing so.

The litigation capacity assessor will ask open-ended questions to the individual for approximately an hour.

What Information is required for a Mental Capacity Assessment to Litigate?

Typically a solicitor will provide instructions with a background to the case and whether a litigation capacity report or litigation capacity certificate is required as ordered by the court.

Additional information would include previous medical and psychiatric history, any difficulties that have so far been encountered in the legal process and details of the current legal proceeding.

What happens if a person lacks the capacity to litigate?

According to the judgment of the Dunhill v Burgin case and the provisions of the Civil Procedure Rules, if a person lacks the mental capacity to litigate, a litigation friend would be appointed to conducting the proceedings for him or her. 

If you are looking for an expert assessment of litigation capacity by one of our experienced psychiatrists, please get in touch.


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