Archive/File: people/i/irving.david/libel.suit/transcripts/day026.01
Last-Modified: 2000/07/25

IN THE HIGH COURT OF JUSTICE            1996 I. No. 113
QUEEN'S BENCH DIVISION

Royal Courts of Justice
                                           Strand, London
                                  Monday, 28th February 2000

                                Before:
                            MR JUSTICE GRAY

        B E T W E E N:
DAVID JOHN CAWDELL IRVING
                                                Claimant
-and-

(1) PENGUIN BOOKS LIMITED
                  (2) DEBORAH E. LIPSTADT
                                                Defendants
   The Claimant appeared in person
   MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons
and Mishcon de Reya) appeared on behalf of the First and
        Second Defendants
   MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on
behalf of the First Defendant Penguin Books Limited

MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
        the Second Defendant Deborah Lipstadt

        (Transcribed from the stenographic notes of Harry Counsell
& Company, Clifford's Inn, Fetter Lane, London EC4 Telephone: 020-7242-9346)
(This transcript is not to be reproduced without the
            written permission of Harry Counsell & Company)

PROCEEDINGS - DAY TWENTY-SIX



.          P-1



   (10.00 a.m.)

(Dr Longerich, Recalled. Cross-Examined by Mr Irving.)

   MR JUSTICE GRAY:  Yes.
   MR IRVING:  Before we start, there is one thing I would like to
        do.  Dr Longerich has used me as a post box.  I have no
        idea what these things are.  There are some documents
        I think that he sent for.  I cannot speak to him so can
        I hand them to him now?  I do not know what they are.
   MR JUSTICE GRAY:  Yes.  Mr Irving, it is sensible just to clear
        this up.
   MR IRVING:  My Lord, I have a problem.  I have brought the
        wrong file with me so I am going to have to go back to
        Duke Street to get it, which will take half an hour,
        unfortunately, which is extremely stupid of me.
   MR JUSTICE GRAY:  These things happen.  You have done pretty
        well so far.  Just let us sort out these documents first.
   MR RAMPTON:  Perhaps your Lordship would deal with it.  As I
        say, I have not spoken to Dr Longerich today, They arrived
        in my chambers this morning.
   MR JUSTICE GRAY:  Dr Longerich, take us through them one by
        one.  Have you got copies, first of all, for Mr Irving and
        for everyone else.
   MR RAMPTON:  I have copies here, yes.
   A.   It is just I asked the Institute in Munich to provide me
        with a number of documents, two or three, concerning the

.          P-2



        vernichtung arbeit in relation to work we discussed on
        Thursday.  If necessary, I can provide these documents,
        and I can quote from them.  I used Mr Rampton's fax
        machine because there was no other way to get them here in time.
   MR JUSTICE GRAY:  How do these documents help?
   A.   I do not know.  It is just in case if we expand.  I do not
        want to use them.  I do not suggest we use them but, if we
        go and discuss this point further, I am here to provide
        evidence that the term vernichtung arbeit was used during
        the war.  It is not a post war expression.
   MR JUSTICE GRAY:  I think what I will do is suggest that we
        leave this until re-examination by Mr Rampton.  Does that
        apply to all of the documents you have, what you just
        said?  Is that just one document you are talking about, or
        the whole lot?
   A.   There are two or three.
   Q.   There are not any other documents?
   A.   No, not at the moment.
   MR RAMPTON:  Can I suggest, my Lord, that we use a little bit
        of re-examination as evidence-in-chief to deal with these
        documents and then, if Mr Irving wants to ask anything
        arising out of that, he should do but not now.
   MR JUSTICE GRAY:  I do not mind when it happens.  I do not
        suppose Mr Irving minds when it happens.
   MR RAMPTON:  Dr Longerich ought to have a chance to read them

.          P-3



        anyway.
   MR JUSTICE GRAY:  Mr Irving, you handed in a clip.  Should I
        spend some of the time looking through that or not?
   MR IRVING:  I can tell your Lordship what they are.  You asked
        for a translation of the Wannsee protocol, and that is one
        of them.  I have also provided your Lordship with a
        complete translation of the Karl Wolff manuscript,
        and  ----
   MR RAMPTON:  Are we allowed to have them?
   MR IRVING:  Yes.  I faxed a copy of it to the instructing
        solicitors over the weekend, but I also emailed it.  My
        Lord, I think this is a proper time to say that at some
        time today I will be making submissions on the relevance
        of right-wing extremism.  Quite simply, this is, I think,
        the proper time to do it, obviously not while
        Dr Longerich, his metre is running, so to speak, probably
        this afternoon some time, and I shall be asking your
        Lordship to possibly have a look at the appropriate page
        of Gatley into which I have read more deeply than Mein
        Kampf, I have to admit.  I think it is page 43 of Gatley
        that I draw your Lordship's attention to and I think
        footnote 88, in particular.  Your Lordship will see the
        relevance of that.  It is Devlin L.  It is the Butalazi case.
   MR JUSTICE GRAY:  The which?
   MR IRVING:  Butalazi, there was a case on, I am sure your

.          P-4



        Lordship is familiar with the kind of authorities.
   MR JUSTICE GRAY:  It is not perhaps one of the best known
        cases, but I think I know there was one.
   MR IRVING:  It is purely the question of whether extremism is
        defamatory, what is meant by extremism.  I think we ought
        really to look at that.
   MR JUSTICE GRAY:  You certainly make your submissions and
        I agree the timing is best after Dr Longerich.
   MR IRVING:  The other point which I wish to take up with your
        Lordship, very briefly, is that I am not getting the
        digital transcript.
   MR JUSTICE GRAY:  Right.
   MR IRVING:  I am only getting a paper transcript.  A dispute
        has arisen with the court reporters over the provision to
        me of the digital transcript.  I have not it since
        February 3rd.  It is a serious disadvantage to me.  I have
        offered them money.  I have offered them other
        inducements.  This is a matter which I would like your
        Lordship to give a friendly word to the court reporting
        service that ----
   MR JUSTICE GRAY:  You will have to tell me a little bit more
        about the reasons they give for not giving the digital
        transcript.
   MR IRVING:  Indeed.
   MR JUSTICE GRAY:  I mean, I have a feeling that I know what the
        problem is but you ----

.          P-5



   MR IRVING:  I can do that now, my Lord.  Quite simply, we
        started posting the digital transcript on the internet as
        a public service, totally non-profit making at all,
        I derive only loss from that.  The court reporters quite
        rightly said there is a property question at issue here.
   MR JUSTICE GRAY:  Well, a copyright question, yes.
   MR IRVING:  It is between one instructing firm of solicitors
        and the court reporters.  It is in a kind of limbo between
        them.  I have made a cash offer to them over a week ago
        now on a per day basis.  They have not come back to me,
        and I am being disadvantaged.
   MR JUSTICE GRAY:  Yes.
   MR IRVING:  Because clearly ----
   MR JUSTICE GRAY:  I think I understand the problem, although
        I suspect one may have to go into it a bit more deeply,
        but I am anxious if you are not getting the digital
        transcript because, although it is not all that easy to
        follow, I found it perfectly possible to make use of.
        Mr Rampton, do you know anything about this or do you not
        want to get involved?
   MR RAMPTON:  No.  Strictly speaking, it is none of our business.
   MR JUSTICE GRAY:  Except you are paying for it so, presumably,
        you have some sort of right over it.
   MR RAMPTON:  I know we are paying for Mr Irving to have a
        transcript for the purposes of the case, the conduct of

.          P-6



        his claim against us.  I guess what has happened is that
        he has been using the transcripts, in all innocence, no
        doubt -- I say that without knowing anything -- for some
        other purpose.
   MR JUSTICE GRAY:  Well, just putting them on his website.
   MR RAMPTON:  That is an infringement of the transcribers'
        copyright.
   MR JUSTICE GRAY:  Well, I would have thought it might be.
   MR RAMPTON:  And to do that, you would need to pay for a
        licence to do it, I guess what has happened.
   MR JUSTICE GRAY:  Mr Irving, so we do not take too long over
        this, my view would be that it is highly desirable that
        you should continue to have the digital transcript and
        I do not understand Mr Rampton to oppose that, but the
        price may be, if that is the right term, that you should
        not put it on your website because I think, technically,
        that is an infringement of their copyright.
   MR IRVING:  Until we reach an agreement.
   MR JUSTICE GRAY:  I mean, if you can reach an agreement, well
        and good, and I can see in some ways it might be desirable
        that it should go on the website if you want publicity
        for  ----
   MR IRVING:  Well, it has attracted great attention and I am now
        being bombarded with E mails from around the world.  Some
        people are accusing me of keeping it off the internet
        because it is unfavourable to me and all sorts of dubious

.          P-7



        motives.
   MR JUSTICE GRAY:  Well, if you were to offer to -- I cannot
        remember the name of the firm but if you were to
        offer  ----
   MR IRVING:  Harry Counsel.
   MR JUSTICE GRAY:  Yes, Harry Counsel, that you will undertake
        not to put it on your website, unless and until some
        agreement is reached, but would they please in the
        meantime let you have the digital transcript, I would hope
        that they would say yes to that.
   MR IRVING:  I am happy to give that undertaking here.
   MR JUSTICE GRAY:  If there is a problem, let me know, but
        I have expressed my wish and that may not count for much but...
   MR IRVING:  But it means that for three weeks I have had no
        digital transcript which has ----
   MR JUSTICE GRAY:  Well, you should have mentioned it perhaps
        before now but you have mentioned it now and ----
   MR IRVING:  Well, I have negotiated, or attempted to negotiate,
        and met with no response.
   MR JUSTICE GRAY:  Yes.  Is there any way of avoiding you having
        to go all the way to Duke Street?  Is there somebody there
        who could put it in a taxi?
   MR IRVING:  My Lord, my partner is seriously ill.  She is
        fighting a battle of her own.
   MR JUSTICE GRAY:  If you say it is necessary, Mr Irving, I am

.          P-8



        perfectly content.
   MR IRVING:  I will try to be back within half an hour, my Lord.
   MR JUSTICE GRAY:  Let a message be passed through when you are back.
   MR IRVING:  Yes, thank you very much.
   MR JUSTICE GRAY:  You are happy to continue in principle?
   MR IRVING:  Yes.  There is no problem.
                      (Adjourned for a short time)
   MR JUSTICE GRAY:  I am sorry, it seems I have added to the
        delay.  My room is about as far as it can be from this court.
   MR IRVING:  The apologies are do you from me for this one hour
        delay.  I do apologise.
   A.   Before I start, could I make some statements.  I just went
        through the minutes of the proceedings of Thursday and
        I would like to correct three mistakes I make, if it is
        possible.
   MR JUSTICE GRAY:  I think I have spotted one.
   A.   There is one on page 63, line 10, when Mr Irving suggested
        I translate the German term "verhungern" with go hungry.
        I think I did not listen carefully enough to him because
        the translation of "verhungern" is clearly to die of
        starvation or to starve to death so, if somebody is
        Verhungerte, he is dead.

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