Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
Copywright
Copyright © 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.
Protected parties and litigation friends explained
A protected party is a person who lacks capacity to conduct their own legal proceedings, and under CPR Part 21 they must have a litigation friend, usually a family member, friend or professional, to make decisions about the case on their behalf. The litigation friend must act fairly and competently in the protected party's interests, and settlements involving protected parties bind only with the court's approval. Whether someone is a protected party is decided against the specific proceedings, which is why a litigation capacity assessment is the gateway to the whole framework. This guide explains the roles, the process and the evidence courts expect.
What a protected party is
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.
Why the protections exist
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.
The litigation friend and what the role involves
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.
Who can act as a litigation friend
A litigation friend is commonly a family member, a deputy already appointed for the person, or, where nobody suitable and willing exists, the Official Solicitor as the litigation friend of last resort. Suitability turns on three things: the ability to conduct the litigation fairly and competently, the absence of any interest adverse to the protected party's within the proceedings and willingness to act, including as to costs. An adverse interest, such as being a co-defendant or rival beneficiary, disqualifies however devoted the relative.
How the appointment happens and the place of capacity evidence
The appointment follows either a certificate of suitability filed by the proposed litigation friend or an order of the court, and beneath both routes sits the capacity evidence: a decision-specific assessment concluding that the person lacks capacity to conduct these proceedings. That evidence is what converts concern into status, and its quality matters, because a thin or generic assessment invites challenge to the appointment and to every step taken under it.
Settlement approval and the court's oversight
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.
When the appointment ends
Protected party status follows capacity, so where the person regains capacity to conduct the proceedings, the litigation friend's appointment is brought to an end and the person resumes the conduct of their own case. Regained capacity is established the same way it was lost, through a decision-specific assessment, and solicitors should treat the question as live wherever the underlying condition can improve, because continuing to act through a litigation friend for a capacitous party is as improper as the reverse.
What families and solicitors should do in practice
Where doubt about a party's litigation capacity arises, the sequence is straightforward: obtain a decision-specific assessment of capacity to conduct these proceedings, identify the proposed litigation friend and test their suitability against the adverse interest rule, complete the appointment by the appropriate route and diarise the capacity question for the case's decision points. Handled early, the machinery is quick and quiet; discovered late, it can unwind months of steps taken without protection.
Key takeaway
Protected party status and the litigation friend are the law's answer to litigation involving someone who cannot conduct it: a substitute decision-maker with no adverse interest, court approval guarding settlement and the whole arrangement resting on decision-specific capacity evidence at each end. Engage the machinery as soon as doubt arises and stand it down when capacity returns, and the proceedings protect everyone they bind.
Frequently asked questions
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not answer the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What evidence is useful for Mental Capacity to Litigate Assessment?
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.
When is a formal assessment for Mental Capacity to Litigate Assessment useful?
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.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Capacity to litigate in doubt?
Nellie Supports provides litigation capacity assessments and critical reviews of existing reports across England and Wales, CPR Part 35 compliant and peer reviewed before delivery. Call 0333 987 5118 or visit the litigation capacity service page.