Dunhill v Burgin: Litigation Capacity - Sam Chandler, Pupil at Five Stone Buildings
18/07/14. Litigation capacity is a live issue for any practitioner working in the field of personal injury law. A party who has suffered an injury with adverse consequences on their short or long term mental ability may well fall short of the required capacity threshold. If so, they will require a litigation friend to conduct proceedings on their behalf in accordance with Civil Procedure Rules rule 21.2. Practitioners must therefore be familiar with the test for litigation capacity as formulated in the case of Masterman-Lister v Jewell [2002] EWCA Civ 1889, and refined in the recent Supreme Court decision of Dunhill v Burgin [2014] UKSC 18.
A party to proceedings must be: “capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings”. [75]
One will usually be making a capacity assessment prospectively, usually at the outset of litigation. However, Dunhill v Burgin concerned that test in circumstances where the...
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