# Litigation Capacity Relevant Information | Nellie Supports Source: https://www.nelliesupports.com/guides/relevant-information-for-litigation-capacity Canonical: https://www.nelliesupports.com/guides/relevant-information-for-litigation-capacity Written by: Ben Slater Source review by: Kerry Slater Source review recorded: 2026-07-19 # Relevant information for litigation capacity Litigation capacity concerns the proceedings as a whole, with appropriate advice and support. The relevant information must reflect the real claim, its risks and the decisions it requires. ## Author and Publication Author: Nellie Supports Ltd Publication Date: 15/05/2026 ​ ## Citation Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889. ## Copywright 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. ## About this guide Litigation capacity concerns the proceedings as a whole, with appropriate advice and support. The relevant information must reflect the real claim, its risks and the decisions it requires. The sections below explain the evidence, practical steps and limits of the assessment or process. ## What’s on this page - [Contact](https://www.nelliesupports.com/guides/relevant-information-for-litigation-capacity) - [Overview](https://www.nelliesupports.com/guides/relevant-information-for-litigation-capacity) - [Frequently Asked Questions](https://www.nelliesupports.com/guides/relevant-information-for-litigation-capacity) - [Related Pages](https://www.nelliesupports.com/guides/relevant-information-for-litigation-capacity) Relevant information for litigation capacity is the information a person must be able to understand, retain, use or 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 Define the relevant information for the proceedings as a whole, including the dispute, the person’s role, decisions likely to arise, use of advice and any material settlement or costs risks. The solicitor should explain the legal context and supply the real case documents. The assessor must avoid testing technical legal knowledge or treating disagreement with advice as inability. ## 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 Consider the advice and assistance reasonably available in these proceedings, including how the person can obtain explanations and give instructions. Many people act through solicitors, while others act in person. The question is whether they can make the litigation decisions with appropriate support, rather than whether they can personally perform every legal task. Record what advice was explained and how the person engaged with it. ## 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 Where settlement is relevant, explain the actual or realistic proposal, what would end, what obligations or rights would follow and the alternatives to agreement. Explore the person’s reasoning with support. Settlement is part of the evidence about conducting the case; a single offer or isolated decision cannot substitute for assessment of the proceedings as a whole. ## Costs, risk and the downside of continuing Explain the costs and funding consequences that actually apply. Adverse costs are relevant in some proceedings but should not be presented as inevitable in every forum. The person needs a broad grasp of material risks, with legal advice where required, rather than mastery of costs law. A different view of an acceptable risk is not by itself incapacity. ## 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 Identify the real proceedings and salient decisions, explain them accessibly and record the person’s responses and reasoning with advice and support. Analyse every functional ability, then any impairment and causal link. The assessor provides evidence; a disputed capacity question is ultimately for the court. ## Frequently asked questions ### Does a diagnosis automatically mean someone lacks capacity? 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. ### What evidence helps with litigation capacity? 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 might a formal opinion be 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. A conclusion about one decision does not establish capacity for another. ## Related mental capacity assessment pages The related pages below explain connected decisions, evidence requirements and legal processes. ### Mental Capacity to Litigate Assessment ### What a litigation-ready capacity review should include ### What is a critical review of a mental capacity assessment? ### Read guide ## Practical next steps 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. ## Primary sources and official guidance [Mental Capacity Act 2005](https://www.legislation.gov.uk/ukpga/2005/9/contents) [Mental Capacity Act Code of Practice](https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice) ## Related information - [Mental Capacity Assessment to Revoke a Lasting Power of Attorney](https://www.nelliesupports.com/lasting-power-of-attorney-services/revoke-lpa) - [NHS Continuing Healthcare Support](https://www.nelliesupports.com/services/continuing-healthcare) - [CHC Appeal Application: Drafting and Submission](https://www.nelliesupports.com/services/continuing-healthcare/chc-appeal-application) --- Nellie Supports Ltd · 0333 987 5118 · nellie@nelliesupports.com Office 11 and 12, Unit 20, Springfield Business Park, Grantham, NG31 7FZ