Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
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Relevant information for litigation capacity
Relevant information for litigation capacity is the information a person must be able to understand, retain, use and weigh in order to conduct their own proceedings: the nature of the claim and what it is about, the issues in dispute, the possible outcomes including the risks of losing, the role of their solicitor and the need to give instructions, the effect of settlement offers, and the consequences of not participating. The courts judge this against the person's actual proceedings, not litigation in the abstract, following Masterman-Lister and Dunhill v Burgin. This guide breaks down each element and how an assessor evidences it.
Relevant information must be defined before assessment
Relevant information is the information the person needs to understand, retain, use or weigh for this decision. For mental Capacity to Litigate Assessment, this usually includes the nature of the proceedings, the issues in dispute, the person’s role, the need to give instructions, weigh advice, understand settlement or risk, and make decisions about the litigation as a whole. Defining that information at the outset avoids vague, unfair or overbroad assessments.
The nature of the proceedings and what is at stake
The person should broadly understand what the proceedings are: who is claiming what from whom, why the dispute exists and what winning and losing would mean for them in practical terms. This is the frame every later decision sits within, and it is tested in the person's own words: their account of what the case is about, what they hope to achieve and what could happen if it fails. Precision is not required; a working grasp of the dispute and its stakes is.
The role of advisers and the nature of advice
Because litigation is conducted through advisers, the person must understand that they have a solicitor acting for them, what the solicitor's role is and that advice will be given which they may accept or reject. The pivotal ability is engaging with advice as advice: absorbing it, asking about it, weighing it against their own wishes. A person who can only assent to whatever was last said, or who cannot hold that the adviser acts on their instructions, is missing information at the core of conducting a case.
The decisions the litigation will demand
The relevant information includes the decisions realistically coming: whether to proceed or discontinue, what instructions to give on the issues, whether to make or accept offers and, eventually, whether to settle. The person does not need to foresee every turn, but they should grasp that decisions of this kind will be theirs, and the assessment should test their reasoning on the concrete choices the case has already produced, because the live decisions of the actual litigation are the fairest test material available.
Settlement, compromise and the value of certainty
Settlement is the decision most litigation capacity questions ultimately protect, so the person should understand what settling means: ending the case by agreement, receiving or paying less than the best possible outcome in exchange for certainty, and losing the ability to continue afterwards. Weighing a concrete offer, its amount against the prospects and burdens of continuing, is the sharpest single test of litigation capacity, and the person's reasoning about a real or realistic offer belongs in the evidence.
Costs, risk and the downside of continuing
The person should hold, in broad terms, that litigation costs money, that losing can mean paying the other side's costs and that continuing therefore carries risk as well as hope. The detail of funding arrangements is not required, but a person who cannot register that the case could leave them worse off is unable to weigh the central trade-off litigation presents, and no amount of enthusiasm for the claim substitutes for that missing weight.
Information that varies with the case
Beyond the core, the relevant information scales with the proceedings themselves. Complex commercial litigation, a contested Court of Protection application and a small claims hearing demand different depths, and the case law is explicit that the question is capacity to conduct these proceedings. The assessor should therefore learn the case before defining the information: its issues, its stage, the decisions pending, so the information put to the person is the information their litigation will actually require of them.
Putting the information and recording the responses
The information should be put concretely, through the person's own case rather than abstractions: what is this claim about, what has your solicitor advised, what would you do if the other side offered a sum, what happens if you lose. Responses recorded verbatim, with the same ground revisited to test retention, give the report its evidential core, and the practicable steps taken, plain language, staging, involving the solicitor's explanation, should be documented alongside.
Key takeaway
The relevant information for litigation capacity is the machinery of the person's own case: the dispute and its stakes, advice and how to use it, the decisions coming, settlement and its meaning, and the risk that continuing carries. Scale it to the actual proceedings, test it through the case's real choices and record the person's reasoning, because litigation capacity is proved and disproved in exactly those answers.
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?
The claim documents themselves matter most: pleadings or the letter of claim, settlement offers, solicitor attendance notes recording how the person engages with advice, and medical records bearing on cognition. The assessment should test understanding against the person's real case rather than hypothetical litigation.
When is a formal assessment for Mental Capacity to Litigate Assessment useful?
An assessment is needed whenever a party's capacity to conduct proceedings is in genuine doubt, because steps taken by a protected party without a litigation friend are procedurally vulnerable, and in Dunhill v Burgin the Supreme Court confirmed that a settlement made by an incapacitated claimant without court approval could be set aside years later.
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.
Need a litigation capacity assessment?
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.