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Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
Copywright
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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.
Apply the Mental Capacity Act test to this decision
The Mental Capacity Act 2005 requires a structured approach. The person must be presumed to have capacity unless lack of capacity is established. They must be supported to make the decision where practicable, and an unwise decision is not enough on its own. The assessment then asks whether an impairment of, or disturbance in the functioning of, the mind or brain causes the person to be unable to make this decision.
Identify the relevant information
For this topic, relevant information commonly 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. The relevant information should be tailored to the person’s actual circumstances. It should not be copied from a generic template if the person’s options, risks or legal context are different.
Gather evidence before drawing conclusions
The assessment is stronger when the evidence is organised before the conclusion is reached. Useful evidence may include the letter of instruction, pleadings or application documents, solicitor attendance notes, expert evidence, court orders, witness statements and records of the person’s instructions. Where records are missing, contradictory or out of date, the report should say so rather than overstate the certainty of the opinion.
Record practicable steps and communication support
The person should be given a meaningful opportunity to make the decision. This may involve simple language, written summaries, visual aids, additional time, breaks, support with hearing or sight, an interpreter, a familiar setting or a carefully timed appointment. The report should explain what support was tried and whether it helped.
Analyse use and weigh, not just understanding
Many capacity disputes turn on whether the person can use or weigh information, not whether they can repeat it. The assessor should consider how the person reasons through benefits, risks, alternatives and consequences. For mental Capacity to Litigate Assessment, this means looking at the person’s own explanation and whether any impairment prevents them from weighing the material information.
Consider risk, pressure and vulnerability carefully
Risk features should be recorded without turning them into shortcuts. Common issues in this area include assessing only one isolated step, failing to identify the actual proceedings, confusing litigation capacity with subject-matter capacity, and giving a conclusion without explaining functional causation. The assessor should distinguish vulnerability, disagreement, family conflict and safeguarding concerns from evidence that the person is unable to make the decision.
What a strong report should contain
A strong report should include the instruction, the specific decision, the legal framework, the relevant information, evidence reviewed, practicable steps, direct assessment findings, functional analysis, causation and a clear conclusion. It should also explain any limitations, such as missing evidence, refusal to engage, fluctuating presentation or the need for further legal advice.
Key takeaway
Litigation capacity is assessed by reference to the proceedings as a whole. The report must be clear enough for solicitors and the court to understand the reasoning. The safest approach is disciplined and evidence-led: define the decision, tailor the relevant information, support the person, apply the functional test and explain the reasoning clearly.
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.