R v P

The appeal concerned the admissibility of opinion evidence in protective proceedings brought by a solicitor against their client. The solicitor sought to rely on an expert report, which was based on confidential communications with the client, to support their application for orders protecting the client's person and estate. The central dispute revolved around whether legal professional privilege and the duty of confidence could be displaced in such circumstances, and whether an objection to the admissibility of the evidence, not raised in the primary court, could be taken on appeal.

The Court of Appeal was required to determine whether a solicitor, who believes their client is incapable of giving rational instructions, can initiate protective proceedings against that client. Furthermore, the court had to consider whether the solicitor could lawfully use or disclose confidential information obtained from the client in those proceedings, and whether opinion evidence derived from such privileged communications was admissible. The court also had to decide whether an objection to the admissibility of evidence, not raised at first instance, could be considered on appeal.

The Court held that a solicitor may, in certain circumstances, take protective proceedings against a client if they reasonably believe the client is incapable of managing their affairs and that such proceedings are in the client's best interests. The court reasoned that the duty of confidence and legal professional privilege are not absolute and can be displaced where necessary to protect the client's welfare, particularly when the client is vulnerable. The court further held that opinion evidence based on privileged communications may be admissible in such protective proceedings, provided the disclosure is justified by the circumstances and the evidence is otherwise relevant and admissible. The court also confirmed that an objection to evidence not taken below may be permitted on appeal if it raises a question of law and its admission would lead to a miscarriage of justice.

The appeal was dismissed, with the Court of Appeal upholding the primary judge's decision regarding the admissibility of the evidence and the solicitor's right to bring protective proceedings.