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.
The decision is conducting these proceedings
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.
What conducting proceedings actually demands
Litigation is a stream of decisions rather than one: whether to bring or defend the claim, what instructions to give, whether to accept advice, whether to settle and on what terms, whether to appeal. The person need not understand the law or run the case themselves, because litigation is conducted through advisers, but they must be able to absorb the advice given, weigh it against their own interests and give instructions upon it as the case moves. The capacity question is whether that cycle of advice, weighing and instruction is within them.
The claim as it is, not as anyone pleads it
The assessment is anchored to the proceedings as they truly are: their subject matter, their complexity, what is at stake and the decisions realistically coming. The case law makes clear that capacity is judged against the claim as it actually stands rather than as a party frames it, which cuts both ways: a claim presented as simple may carry settlement decisions of real difficulty, and a claim dressed as complex may in substance ask the person to decide very little. The assessor should understand the litigation before assessing the litigant.
Applying the statutory test to litigation decisions
The Mental Capacity Act 2005 test applies: understanding, retaining, using or weighing the relevant information and communicating decisions, with any inability caused by an impairment of, or disturbance in the functioning of, the mind or brain. Retention has a particular character in litigation, because proceedings run for months and decisions build on earlier ones, and use or weigh is tested through the person's reasoning about advice: not whether they accept it, since capacitous litigants reject advice constantly, but whether they can engage with it as advice at all.
Litigation capacity and subject matter capacity
Capacity to conduct proceedings is distinct from capacity to make the decision the proceedings are about. A person may lack capacity to manage their property and affairs, the very subject of a Court of Protection application, whilst retaining capacity to participate in that application; and a personal injury claimant may conduct their claim capably whilst lacking capacity to manage the damages it produces, which is precisely why capacity to manage an award is assessed as its own question. Reports should keep these decisions separate and conclude on each that is asked.
Fluctuation and capacity across the life of a case
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.
The consequences of the finding
The finding carries immediate procedural consequences. A party who lacks capacity to conduct the proceedings is a protected party and must act through a litigation friend, settlements involving protected parties require the court's approval, and steps taken without these protections are vulnerable. In the other direction, a capacitous party is entitled to conduct their own case and make their own decisions, including unwise ones, and an assessment must not become the route by which an inconvenient litigant is managed out of their own claim.
What a litigation capacity report should contain
The report should describe the proceedings, their issues and the decisions they will realistically demand, the relevant information for conducting them, the practicable steps taken, the person's own account of the case and their reasoning about the advice received, the functional analysis, the causative link and a conclusion on these proceedings specifically. Where the report may be relied upon in the litigation itself, it should be prepared to CPR Part 35 standards from the outset.
Key takeaway
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.
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.