Capacity to Litigate Assessment

A capacity to litigate assessment may be needed when someone lacks the capacity to conduct 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 mental capacity  to litigate is advised following recent case law and 2014 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 falls under the legal test laid out in the Supreme Court Ruling Dunhill v Burgin case. In this case, the ruling particularly applied to claimants in personal injury cases.

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, an assessment of litigation capacity should consider the following:

  • 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 assess capacity to conduct proceedings?

A Mental capacity assessment for litigation can determine whether the client needs an intermediary or Litigation Friend.

certificate as to capacity to conduct proceedings can be prepared for the Court in the event the person lacks litigation capacity.


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 includes previous medical and psychiatric history, any difficulties that have so far been encountered in the legal process and details of the current legal proceedings.

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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