Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Dunhill v Burgin [2014] UKSC 18.
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What is capacity to conduct proceedings?
Capacity to conduct proceedings, often called litigation capacity, is the ability to make the decisions that running or defending a legal case requires: understanding the claim and its issues, weighing advice and settlement offers, giving instructions and appreciating the consequences of the available options. It is judged under the Mental Capacity Act 2005 against the person's actual proceedings, following Masterman-Lister and Dunhill v Burgin, and a person who lacks it becomes a protected party requiring a litigation friend under CPR Part 21. This guide explains the test, who assesses it and what follows a finding either way.
What this guide explains
This guide explains what is capacity to conduct proceedings in practical terms. The focus is not on labelling a person as capable or incapable, but on understanding the specific decision, the information that matters, and the evidence needed to support a fair and defensible conclusion.
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 documents of the person's real case: pleadings, offers and attendance notes showing how they engage with advice, together with medical records explaining any impairment. Litigation capacity cannot be assessed in the abstract, because the complexity of the actual proceedings is part of the test.
When is a formal assessment for Mental Capacity to Litigate Assessment useful?
A formal assessment is needed whenever litigation capacity is in genuine doubt, and the earlier the better: proceedings conducted by a protected party without a litigation friend are procedurally vulnerable, and settlements can be reopened if capacity was absent, as Dunhill v Burgin demonstrates.
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.
Is litigation capacity in question?
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.