Where the fraud, offence or act relied upon to defeat privilege under s 125(1)(a) is not a fact in issue in the proceedings, the party challenging privilege must prove the necessary facts on the balance of probabilities, not merely establish a prima facie case. The conduct of a solicitor acting as agent for a client can engage s 125(1)(a) even though the professional duties breached are duties of the solicitor rather than the client. An affidavit that contains no express falsehoods but is drafted to invite misleading inferences can constitute misleading conduct exposing a solicitor to disciplinary consequences. An instructing solicitor present in court has an independent duty to correct misleading statements made by counsel.
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