Archive/File: people/i/irving.david/libel.suit/transcripts/day031.01 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 Tuesday, 14th March 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 THIRTY-ONE . 1 (10.30 a.m.) MR JUSTICE GRAY: Mr Irving? MR IRVING: My Lord, I have provided your Lordship a copy of the fresh off the presses closing speech which I would propose to read tomorrow. MR JUSTICE GRAY: How does that ---- MR IRVING: It is 104 pages. It continues from where the version left off which I supplied your Lordship yesterday and I have also reversed the order what I would call sections 2 and 3 of it. If I can say simply it starts off with have an opening preamble. It continues, my Lord, with a look at some of the historical issues and then only after a while does it, after about 30 pages, then go on to what I call bundle E matters. MR JUSTICE GRAY: Just so I understand how the two relate to one another, I had yesterday from you 56 pages, I think it was. MR IRVING: Yes. MR JUSTICE GRAY: Are they the first 56 pages? MR IRVING: They are the first 56 pages, but they have been cosmetically worked over. I have ---- MR JUSTICE GRAY: Have they? MR IRVING: --- a gentleman who I refer to as my political correctness editor, he came over and worked over it for me. MR JUSTICE GRAY: Good. I have read and marked up slightly . 2 what you gave me yesterday. MR IRVING: That is what I feared. The page numbers will make no sense to you now, my Lord, because of the bulk change I did. I switched, effectively, sections and , although they are not numbered, purely to put them into a more optimistic up beat sequence. MR JUSTICE GRAY: Right. I will try to -- I see, yes, it is completely changed . MR IRVING: When I get back, my Lord, I am sure it will help your Lordship if I produce a brief concordance and fax it through to your office which will give your Lordship an overview. MR JUSTICE GRAY: I can probably make my own way through it. MR IRVING: I have put headings in ---- MR JUSTICE GRAY: Thank you very much. MR IRVING: --- which will assist your Lordship. I would also just like to say I had not at the time I wrote it had the opportunity of reading the Defendants' own statement. So it is written in vacuo, so to speak, not that it will alter matters, I am sure. MR JUSTICE GRAY: I think the theory was there was going to be an exchange so that is inevitable. MR IRVING: Effectively, there has been an exchange, simultaneous change, because I am sure they have not read mine and I have not read theirs. MR JUSTICE GRAY: Good. Thank you very much. . 3 MR RAMPTON: Your Lordship has got I think now, I hope, a complete version of our written submission. All the sections are now, I hope, complete. MR JUSTICE GRAY: Yes. MR RAMPTON: It is right. I will not not say any more about that at the moment. It is over 200 pages of rather dense reading. I will tomorrow, as I have your Lordship's permission, I think, make a very much shorter summary submission orally. I have not written that yet. Your Lordship will not find any of the contents of it, having regard to this, in the least surprising, I am sure. I shall try to make sure that your Lordship gets it and Mr Irving in good time before the hearing starts tomorrow. MR JUSTICE GRAY: Yes. MR RAMPTON: But I will be surprised if I am on my feet for even more than a part of tomorrow morning. MR JUSTICE GRAY: Good. Mr Irving, you are proposing to do the same thing, as I understand it? MR IRVING: I was hoping for some kind of guidance from your Lordship. If your Lordship would mark in bulk or inform me in bulk at some time which passages you felt were not proper to deal with orally or in detail. It is a detailed submission which I have made to your Lordship and your Lordship may feel that some of the matters are too detailed to be dealt with in a closing statement. MR JUSTICE GRAY: I think I will give you a bit of guidance . 4 because, having read yesterday's 56 pages, and I do not say this critically but it did appear to me that there was a great deal on the topic about which you obviously feel passionately, namely what you see as being a conspiracy to bring your career as an author to a premature end. Those are not your words, I appreciate. MR IRVING: I astutely avoided that word. MR JUSTICE GRAY: No, but there is an awful lot on that topic. Much of it did not appear to me to have anything to do with the Defendants. You may take a different view, but I am not sure that the evidence suggests that the Defendants are as involved with all the things of which you are complaining as you suggest. I, therefore, rather doubt whether it would be appropriate for you to use this court as a platform for what one might call a general attack on the conspirators, as you regard them. MR IRVING: That is precisely the view that I expected from your Lordship which I obviously anticipated in the letter that I attached to the document. MR JUSTICE GRAY: Yes. MR IRVING: I will edit substantially with that in mind before I come to make the oral presentation. MR JUSTICE GRAY: Yes. MR IRVING: It will remain a part of the submission that I make to the court, but it will not be put in the oral part of the submission, if I can put it like that. . 5 MR JUSTICE GRAY: Yes. I think that is sensible, but beyond that I do not think I can really give you much guidance. If you were able to hand in what you were proposing to say in time for me to look at it, then if there is anything I think that is for one reason or another objectionable, or indeed Mr Rampton does, then you can be told and you can make submissions if you want to why you should be allowed to say it. MR IRVING: I think I have a very astute feel for the way the court is feeling in this matter and, having got it off my chest, if I can put it like that, I will limit what I actually say to the matters which I consider to be of relevance. MR JUSTICE GRAY: Yes. What is at the heart of it, obviously, are criticisms that are listed in section . MR IRVING: Well... MR JUSTICE GRAY: through, well, to the end. MR IRVING: The problem that I had, of course, is that not having been able to cross-examine the Defendants in this matter which would have brought forward the links which I am sure are there, this was the material which was assembled with that in mind. They have avoided that difficulty by not presenting their witnesses for cross-examination. MR JUSTICE GRAY: Yes. I understand how you feel about that. MR IRVING: And I wanted, nonetheless, to put it before your . 6 Lordship. I also put a certain amount of explanatory material in the footnotes which I was not proposing to read out, purely to point your Lordship to where the documents are so as far as I know they are in the bundles or were they are in the daily transcripts. MR JUSTICE GRAY: Yes, good. Well, then that is ... MR RAMPTON: There is only one other thing I need to do, I am sorry, it is to hand in a list of corrections -- they are mostly typographical errors and missing references -- for our long submission, if I may do that. MR JUSTICE GRAY: Yes. It is for you to make such oral submissions as you wish. MR RAMPTON: I am sorry? MR JUSTICE GRAY: Are you going to make any oral submissions? MR RAMPTON: I am, tomorrow, yes. MR JUSTICE GRAY: Tomorrow, right. MR IRVING: I do not know whether this is the right point to your Lordship's attention to the fact that I am challenging now the Muller document, purely on the basis that it has not been provided to me in the way that your Lordship ordered the August 1st 1941 document, and this might be the place with which to deal with that. I have dealt with it in the submission that I handed in this morning. MR JUSTICE GRAY: Well, you will have to direct me to where it comes because, obviously, I have not read it. . 7 MR IRVING: I have not got it with me, my Lord, but, basically, the document was supplied to me on the weekend. It does not advance our knowledge as to the original document or the original file. There are no surrounding documents provided with it. I have not been able to make any more detailed researches into the nature of the document. So I have made a submission in the document I have handed your Lordship, both on the admissibility of that letter and, if your Lordship is minded to admit the letter in evidence, nonetheless, also on the content of the letter. MR JUSTICE GRAY: Well, this is all a bit opaque to me. Are you able to point to where you deal with this in your revised closing statement? I simply do not know my way around it all because I have only seen it within the last couple of minutes. MR IRVING: It was finished at o'clock this morning. MR JUSTICE GRAY: I can understand that. Even so, if I am going to make sense of what you are telling me about the Muller document, I need to have the references, do I not? MR IRVING: I shall have to hold that over then, my Lord, until tomorrow. MR RAMPTON: My Lord, I simply do not understand this. I have never understood, apart from the fact that he does not like its contents, what Mr Irving's problem with this document has been. We have many documents in the file which are original Nazi documents headed "Abschrift" by . 8 the person who made the copy because that is what they are. They are copies of original documents that have disappeared, but they are contemporaneous copies. We now have have three copies of this document, one from Moscow which is where the original copy is held in the archive. That is the one that looks like that. It has a front cover that looks like that. Your Lordship has had all these, I think? MR JUSTICE GRAY: I do not remember that front cover. Can you give me the reference? I am bound to say I have found it in trying to prepare my judgment, extraordinarily difficult because of the way in which the documents have been got together, but if you can give me the reference to it? MR RAMPTON: It is in N1. I have not got N1 here, unfortunately, but its date is 1st August so I can very quickly find it. MR JUSTICE GRAY: Page 49? MR RAMPTON: Yes. Page 49. I do not have it here, I am afraid, but the 49, the actual copy of which we now have three copies is at page 51. MR JUSTICE GRAY: Yes. I am just reminding myself of what the points were that Mr Irving took and he will tell me if there are any others. Firstly, it is an Abschrift; secondly, it has a rather security classification given its contents, just "Geheim". . 9
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