'An attorney's bill of costs': how did it become protected from disclosure by legal professional privilege?

摘要

This article examines the process whereby two mid-nineteenth legal cases are still cited by some contemporary authorities, particularly Halsbury, for the proposition that lawyers’ bills for professional services as a class of documents are protected from disclosure by legal professional privilege. It examines these two cases in the context of what can be discovered from other sources about the persons involved to test to what extent the reliance on them for this purpose remains, or ever was, justified. The article then presents a meta-analysis of all discovered texts on evidence and discovery published between the date of the first of the two cases and the date of their enshrinement with their current status in the first edition of Halsbury (and essentially repeated in all later editions to the current one). It shows how limited was the use of these two cases in the books on evidence and discovery published during the period of analysis. The article concludes with some critical observations on what the analysis shows about legal methodology.