GUIDES
A protected party lacks capacity to conduct the particular proceedings. A litigation friend conducts the case on their behalf, subject to the applicable court rules and oversight.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
Copywright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
A protected party lacks capacity to conduct the particular proceedings. A litigation friend conducts the case on their behalf, subject to the applicable court rules and oversight. The sections below explain the evidence, practical steps and limits of the assessment or process.
In civil proceedings governed by CPR Part 21, a protected party is someone who lacks capacity to conduct those proceedings and must have a litigation friend. The litigation friend conducts the case fairly and competently without an adverse interest; settlements require court approval. Capacity is assessed against the proceedings as a whole with appropriate advice and support, and the court determines a disputed capacity question. Family and Court of Protection proceedings have their own rules.
A protected party is a party to proceedings who lacks capacity to conduct them. The label is procedural, not personal: it says nothing about the person's other abilities or their capacity for any other decision, only that these proceedings cannot fairly demand the cycle of understanding, weighing and instructing that conducting a case requires. The status exists to keep the litigation valid and the person protected, and it ends when capacity to conduct the proceedings returns.
Litigation binds people to its outcomes: judgments, settlements and costs orders all attach whether or not the person could weigh what was done in their name. The protected party rules exist to ensure that a person who cannot conduct proceedings is neither run over by them nor able to have their case invalidated afterwards, protecting the opposing party too, because steps taken against an unprotected incapacitous party are themselves vulnerable. The machinery serves the fairness and the finality of the litigation at once.
A protected party acts through a litigation friend, who conducts the proceedings on the person's behalf: instructing the solicitors, making the decisions the case demands and doing so fairly and competently in the protected party's interests. The litigation friend does not become the party and does not pursue their own view of a good outcome; they stand in the decision-making seat the person cannot occupy, subject to the duty to act for the person's benefit throughout.
A relative, friend or professional may be suitable. A deputy with the relevant authority may be entitled to act, and the Official Solicitor may be approached where no other suitable, willing person is available, subject to acceptance of the case. Under CPR 21.4, check fair and competent conduct, absence of an adverse interest and, for a claimant, the required undertaking about costs. A family relationship alone neither establishes nor defeats suitability.
Check the route under CPR 21.4 to 21.6: an authorised deputy, a person filing the prescribed certificate of suitability, or a court appointment. Capacity evidence must concern these proceedings and explain the basis of the opinion. The certificate of suitability and the capacity assessment do different jobs. If capacity is disputed, bring the issue to the court rather than treating the assessor’s opinion as a procedural order.
Settlements and compromises involving a protected party do not bind unless approved by the court, which considers whether the proposed outcome is in the protected party's interests before sanctioning it. The approval requirement is the system's backstop: it prevents under-settlement of claims the person cannot weigh themselves, and it is also why the capacity position at the point of settlement matters so much, since approval is only required, and only protective, where the party is in fact protected.
Where a protected party regains or acquires capacity to conduct the proceedings, CPR 21.9(2) provides that the litigation friend’s appointment continues until ended by court order. Obtain appropriate evidence, apply for the order and comply with the notice requirements. Solicitors should remain alert to material change, particularly where the underlying condition may improve or fluctuate.
Raise a genuine concern promptly with the solicitor or court. Identify the proceedings, advice and support available, obtain appropriate capacity evidence, consider a suitable litigation friend and follow the relevant appointment route. CPR 21.3 restricts further steps where a litigation friend is needed, subject to its exceptions and court permission. If a deadline or existing step is affected, seek directions promptly.
Protected-party safeguards depend on capacity for the particular proceedings, a suitable litigation friend and the court’s supervision. Keep capacity under review and follow the required court process when the person’s position changes. A capacity opinion informs that process; it does not appoint or discharge the litigation friend.
No. A diagnosis alone does not establish incapacity. For a Mental Capacity Act decision, provide practicable support, examine understanding, retention, use or weighing and communication, then explain whether any inability is caused by an impairment or disturbance of mind or brain. The conclusion is specific to the decision and time.
Evidence about how the person engages with their own case: whether they can follow advice, weigh settlement offers and give instructions, alongside medical records and the claim documents. The certificate of suitability for a litigation friend under CPR Part 21 is separate from, and is usually supported by, the capacity evidence.
An assessment is needed as soon as capacity to litigate is in genuine doubt, because steps taken in proceedings without a required litigation friend can be set aside, and settlements involving protected parties are not binding without the court's approval. A conclusion about one decision does not establish capacity for another.
The related pages below explain connected decisions, evidence requirements and legal processes.
Before seeking a report, write down the exact decision, relevant date, reason for concern and intended use. Gather the documents that explain the real options and any communication needs. Check any required form or court direction, agree the scope and total fee, and clarify how missing evidence or further questions will be handled.
A GOOD PLACE TO START
Tell us what is happening and what you need help with. We will listen, explain the options and help you find the right starting point.