GUIDES
Capacity to conduct proceedings is the ability to make the decisions the particular case requires, with appropriate legal advice and support. The court determines disputed procedural status.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Dunhill v Burgin [2014] UKSC 18.
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Capacity to conduct proceedings is the ability to make the decisions the particular case requires, with appropriate legal advice and support. The court determines disputed procedural status. The sections below explain the evidence, practical steps and limits of the assessment or process.
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.
Capacity to conduct proceedings, often called litigation capacity, is the ability to conduct the particular claim or application the person is actually involved in: to understand its nature, follow advice about it and make the decisions it will demand. Following Masterman-Lister, the question is issue-specific, judged against these proceedings with their real issues and complexity, so a person may have capacity to conduct a straightforward debt claim whilst lacking capacity for complex multi-party litigation, and neither finding travels to the other.
Consider the decisions the proceedings as a whole require and the advice and assistance reasonably available. The person need not perform a lawyer’s technical work, but should be able to engage with advice, weigh material options and communicate instructions with appropriate support. Some litigants act in person; the legal context and available assistance must be considered rather than assuming every party has a solicitor.
Dunhill v Burgin requires attention to the claim or cause of action the person in fact has, rather than merely how a claim happened to be pleaded or an isolated decision made at settlement. Obtain the solicitor’s explanation of the proper issues, complexity and decisions. The assessor needs that context before defining the information the person must be able to use.
Apply the Mental Capacity Act functional abilities to the real proceedings with appropriate support, then explain any impairment and causal link. Retention does not require unaided memory across months: summaries, reminders and legal advice may support each decision. Refusal to accept advice does not itself prove inability to engage with it. Record what was explained, supported and demonstrated.
Litigation capacity is distinct from capacity for the subject matter and from the ability simply to attend or participate. A person may lack capacity for financial management yet retain capacity to conduct the relevant proceedings with support; another may conduct a claim but need help managing an award. Identify and assess the actual question in each case rather than substituting participation or another capacity finding.
Because proceedings extend over time, litigation capacity can be lost and regained across a case. A finding at issue of proceedings does not immunise the position at settlement, and conditions that fluctuate, or treatments that change, can move the person across the line in either direction. Solicitors should stay alert to change, and a fresh assessment at the case's decision points, particularly settlement, keeps the protection current and the proceedings safe.
For civil proceedings within CPR Part 21, a person lacking litigation capacity is a protected party and must have a litigation friend; the relevant settlements require court approval. Bring concerns to the court promptly and follow its directions about further steps. Court of Protection and family proceedings have their own rules. An assessor provides evidence and the court determines disputed capacity and procedure.
Describe the real proceedings, relevant legal advice, available support and salient decisions, then set out the person’s account, functional findings and any impairment and causal link. Keep litigation capacity distinct from other decisions. Check the expert-evidence rules for the forum: CPR Part 35 for civil proceedings or the applicable Court of Protection or family rules and directions.
Capacity to conduct proceedings is issue-specific: this claim, its real complexity and the cycle of advice, weighing and instruction it demands. Assess the person against the litigation as it truly is, keep the question separate from the subject matter of the dispute and revisit it at the case's decision points, because the protections that follow the finding only work when the finding tracks the person's actual position.
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.
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.
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. A conclusion about one decision does not establish capacity for another.
The related pages below explain connected decisions, evidence requirements and legal processes.
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.
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