Capacity to litigate is a person’s ability to engage in the legal proceedings from the beginning where they would have to instruct a Solicitor to the end of the proceedings. The development of the law under which capacity to litigate was first established under common law in the case of Masterman-Lister v Brutton & Co [2003] 1 WLR 1511 before the coming into effect of the Mental Capacity Act 2005.
Lady Hale also confirmed in Dunhill v Burgin that the common law approached has now been confirmed in the Mental Capacity Act 2005. The Law Society and Official Solicitors have since given guidance on the relevant information Mental Capacity Assessors must provide a person to determine thier capacity to litigate. The guidance has listed the five elements outlined by Lady Justice Arden in Bailey v Warren, while applying the test established in MastermanLister v Brutton and approved in Dunhill v Burgin.
The five elements are:
- The party or intended party would need to understand how the proceedings were to be funded.
- They would need to know about the chances of not succeeding and the risk of an adverse order as to costs.
- They would need to have capacity to make the sort of decisions that arise in litigation.
- Capacity to conduct the proceedings would include the capacity to give proper instructions for and to approve the particulars of claim, and to approve a compromise.
- For a party or intended party to have capacity to approve a compromise, they would need insight into the compromise, an ability to instruct solicitors to advise them on it, and an understanding of their advice and an ability to weigh their advice.