Litigation Capacity
Expert psychiatric evaluation of Litigation Capacity — the party’s functional ability to conduct legal proceedings and provide instructions. We provide CPR Part 35 compliant assessments with urgent reports available for immediate court deadlines.
Expert Type
- Consultant Forensic Psychiatrist
- Consultant Psychiatrist
- Clinical Psychologist
- Neuropsychologist
Applicable Law
- Mental Capacity Act 2005
- Masterman-Lister v Jewell & Brutton & Co [2002] EWCA Civ 1889
- Dunhill v Burgin (Re Browne) [2014] UKSC 18
- Civil Procedure Rules (Part 21)
When Needed
Assessment should be considered where there is reason to believe a party may lack mental capacity to conduct proceedings, in which case a litigation friend may need to be appointed pursuant to CPR Part 21.
What Is a Litigation Capacity Assessment?
A Litigation Capacity assessment is a formal evaluation to determine if an individual has the requisite mental functioning to conduct legal proceedings. This is a decision-specific evaluation intended to assist the court in safeguarding the fair trial rights of vulnerable individuals within the UK justice system.
The legal framework follows the Mental Capacity Act 2005, focusing on whether a person can understand, retain, and weigh information relevant to the legal proceedings. It is guided by the principles set out in Masterman-Lister v Jewell & Brutton & Co [2002] EWCA Civ 1889, confirming that capacity must be assessed in the context of the particular proceedings.
- Understanding the issues — the ability to comprehend the nature of the claim and the choices involved
- Retaining information — the capacity to hold relevant legal details long enough to make a decision
- Weighing information — the ability to use and weigh information as part of the decision-making process
- Communicating decisions — the capacity to express choices clearly to legal representatives or the court
- Instructing solicitors — the ability to provide clear, consistent, and rational directions to a legal team
- Managing consequences — understanding the potential risks, costs, and outcomes of the litigation process.
Our expert witnesses provide rigorous clinical evidence to help the court decide if a litigation friend must be appointed to act on a party’s behalf. These reports assist the court in ensuring compliance with Civil Procedure Rules (in particular Parts 21 and 35) and reducing the risk of subsequent challenge on capacity grounds.
The assessment process involves a detailed clinical interview and a comprehensive review of medical records to establish a causal link between a mental impairment and the specific functional deficits in litigation-related decision-making.
Key Assessment Components
Our assessment evaluates the following areas:
Clinical Interview
A comprehensive session to assess the individual’s mental state and cognitive functioning relative to the legal case.
Documentation Review
A thorough analysis of medical history and legal papers to identify patterns of cognitive or psychiatric impairment.
Cognitive Screening
Utilising standardised tools to evaluate executive function, memory, and the ability to process complex information.
Functional Assessment
Evaluating the party’s ability to grasp the specific legal choices and consequences inherent in their current proceedings.
Nexus Determination
Establishing the required causal link between a diagnostic condition and the functional inability to conduct litigation.
CPR Part 35 Report
The production of a formal, court-ready report that adheres to all judicial requirements and the Statement of Truth.
Conditions That May Affect This Assessment
A range of psychiatric and psychological conditions can affect this assessment. These include:
Capacity is always decision-specific and may change over time due to the fluctuating nature of certain clinical conditions.
Assessment Process
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Instruction Received
We receive instructions from solicitors or the court, outlining the specific legal issues and the reason for the capacity concern.
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Expert Matched
We match the case with a suitably qualified psychiatrist or psychologist who has specific expertise in the relevant diagnosis.
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Assessment Conducted
The expert conducts a clinical interview and record review, focusing on the functional tests of the Mental Capacity Act.
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Report Delivered
A comprehensive CPR Part 35–compliant report is delivered, providing an independent expert opinion on the party’s capacity to conduct proceedings.
Turnaround Times
| Urgency Level | Timescale |
|---|---|
| Standard Report | 4-6 weeks from assessment |
| Priority Report | 1-2 weeks |
| Urgent Report | 1-4 days |
What’s Included in the Report
All reports are prepared by experienced expert witnesses and are fully compliant with current Civil Procedure Rules.
Frequently Asked Questions
Need a Litigation Capacity Report?
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