GUIDES
Personal injury cases can raise separate questions about capacity to conduct proceedings and capacity to manage an award. Assess each where relevant; a protected party’s settlement requires court approval under CPR Part 21.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Dunhill v Burgin [2014] UKSC 18.
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Personal injury cases can raise separate questions about capacity to conduct proceedings and capacity to manage an award. Assess each where relevant; a protected party’s settlement requires court approval under CPR Part 21. This guide covers the relevant evidence, support, process and limits in England and Wales.
Personal injury cases can raise separate questions about capacity to conduct proceedings and capacity to manage an award. Assess each where relevant; a protected party’s settlement requires court approval under CPR Part 21. The court decides procedural status and approval, while the management of damages needs its own lawful arrangements. One opinion should not merge these distinct questions.
Identify whether the concern is conducting the proceedings, managing damages or another specific decision. Capacity for the injury, treatment or daily life does not automatically answer litigation capacity.
For litigation, consider the proceedings as they should properly be framed and conducted as a whole, with realistic support and legal advice. For the award, identify its actual management demands and available assistance. Give separate reasoning and conclusions if both are assessed.
Apply the appropriate legal framework to each question. In an MCA opinion, consider functional abilities with support, then any impairment causing inability. Litigation capacity requires attention to the properly framed case, not only the ability to accept a particular offer.
Relevant case information may include the claim, significant evidence, advice, offers, risks, costs and consequences of settlement or continuing. Award management may involve income, care needs, investment and professional support. The claimant need not reproduce their advisers’ technical expertise.
Useful evidence may include the settlement proposal, litigation documents, advice received, expert evidence, deputyship or litigation friend involvement, risks, alternatives and the person’s understanding of the effect of accepting or refusing settlement.
Risk factors should be recorded without being treated as shortcuts to incapacity. Relevant issues may include family conflict, urgency, financial pressure, inconsistent instructions, communication barriers, safeguarding concerns, dependency on others, or a history of cognitive impairment. The report should separate risk from the legal question of capacity.
A useful guide or report should identify the decision, relevant information and evidence, explain the support provided, and show how the conclusion follows. Readers should also be able to find the applicable official source and understand any limits or uncertainty.
A litigation friend conducts proceedings for a protected party under the applicable rules and court oversight. A deputy’s authority to manage funds comes from a separate order. Approval, payment and management arrangements must follow CPR Part 21 and any directions; a capacity report alone creates none of those powers.
Assess the properly framed proceedings and management of the award separately where relevant. Provide support and clear evidence, and let the solicitor address protected-party procedure, approval and lawful receipt or management of damages.
It depends on the exact decision, the evidence available, the purpose of the report and whether the matter is family-led, professional, solicitor-led or court-related. An independent, decision-specific assessment matched to those factors carries the most weight.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
Explain each capacity question, the supported findings, evidence and reasoning, rather than assume one conclusion covers litigation and finances. Raise concerns before significant steps where possible. The court’s approval and any deputyship or other management route must be arranged separately.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Flag genuine capacity concerns to the litigation solicitor before significant procedural or settlement steps. Provide the case papers and support information, and distinguish litigation-friend, approval and management-of-damages arrangements.
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