Litigation capacity
Litigation capacity refers to a person’s ability to conduct legal proceedings, which involves understanding, participating in, and making decisions about a case they are involved in. Litigation capacity was defined in common law in the case of Masterman - Lister v Brutton & Co¹ which established that an individual must have mental capacity in order to be able to participate in legal proceedings.
Since the Mental Capacity Act was passed in 2005, litigation capacity has been assessed in accordance with the functional test of capacity set out in it. Litigation capacity, however, requires more than being able to simply instruct a solicitor. The individual in question needs to understand the entirety of the legal case at hand and their role in it, as well as the nature of court proceedings, the purpose of the solicitor, the opposing side / viewpoints, possible outcomes and ramifications etc. Depending on the complexity of the case, a high level of understanding may be required.
[2002] EWHC 417 (QB)