Part I: Initial Proceedings (1.1 to 7.16)
1 IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN’S BENCH DIVISION
2 Royal Courts of Justice
3 Strand, London
4 Tuesday, 14th March 2000
5
6 Before:
7 MR JUSTICE GRAY
8
9 B E T W E E N: DAVID JOHN CAWDELL IRVING
10 Claimant -and-
11 (1) PENGUIN BOOKS LIMITED
12 (2) DEBORAH E. LIPSTADT
13 Defendants
14 The Claimant appeared in person
15 MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the First and
16 Second Defendants
17 MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on behalf of the First Defendant Penguin Books Limited
18 MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
19 the Second Defendant Deborah Lipstadt
20
21 (Transcribed from the stenographic notes of Harry Counsell
& Company, Clifford’s Inn, Fetter Lane, London EC4
22 Telephone: 020-7242-9346)
23 (This transcript is not to be reproduced without the written permission of Harry
Counsell & Company)
24
25 PROCEEDINGS – DAY THIRTY-ONE
26
. P-1
1 < (10.30 a.m.)
2 MR JUSTICE GRAY: Mr Irving?
3 MR IRVING: My Lord, I have provided your Lordship a copy of
4 the fresh off the presses closing speech which I
5 would propose to read tomorrow.
6 MR JUSTICE GRAY: How does that —-
7 MR IRVING: It is 104 pages. It continues from where the
8 version left off which I supplied your Lordship yesterday
9 and I have also reversed the order what I would call
10 sections 2 and 3 of it. If I can say simply it starts off
11 with have an opening preamble. It continues, my Lord,
12 with a look at some of the historical issues and then only
13 after a while does it, after about 30 pages, then go on to
14 what I call bundle E matters.
15 MR JUSTICE GRAY: Just so I understand how the two relate to
16 one another, I had yesterday from you 56 pages, I think it
17 was.
18 MR IRVING: Yes.
19 MR JUSTICE GRAY: Are they the first 56 pages?
20 MR IRVING: They are the first 56 pages, but they have been
21 cosmetically worked over. I have —-
22 MR JUSTICE GRAY: Have they?
23 MR IRVING: — a gentleman who I refer to as my political
24 correctness editor, he came over and worked over it for
25 me.
26 MR JUSTICE GRAY: Good. I have read and marked up slightly
. P-2
1 what you gave me yesterday.
2 MR IRVING: That is what I feared. The page numbers will make
3 no sense to you now, my Lord, because of the bulk change
4 I did. I switched, effectively, sections 2 and 3,
5 although they are not numbered, purely to put them into a
6 more optimistic up beat sequence.
7 MR JUSTICE GRAY: Right. I will try to — I see, yes, it is
8 completely changed .
9 MR IRVING: When I get back, my Lord, I am sure it will help
10 your Lordship if I produce a brief concordance and fax it
11 through to your office which will give your Lordship an
12 overview.
13 MR JUSTICE GRAY: I can probably make my own way through it.
14 MR IRVING: I have put headings in —-
15 MR JUSTICE GRAY: Thank you very much.
16 MR IRVING: — which will assist your Lordship. I would also
17 just like to say I had not at the time I wrote it had the
18 opportunity of reading the Defendants’ own statement. So
19 it is written in vacuo, so to speak, not that it will
20 alter matters, I am sure.
21 MR JUSTICE GRAY: I think the theory was there was going to be
22 an exchange so that is inevitable.
23 MR IRVING: Effectively, there has been an exchange,
24 simultaneous change, because I am sure they have not read
25 mine and I have not read theirs.
26 MR JUSTICE GRAY: Good. Thank you very much.
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1 MR RAMPTON: Your Lordship has got I think now, I hope, a
2 complete version of our written submission. All the
3 sections are now, I hope, complete.
4 MR JUSTICE GRAY: Yes.
5 MR RAMPTON: It is right. I will not not say any more about
6 that at the moment. It is over 200 pages of rather dense
7 reading. I will tomorrow, as I have your Lordship’s
8 permission, I think, make a very much shorter summary
9 submission orally. I have not written that yet. Your
10 Lordship will not find any of the contents of it, having
11 regard to this, in the least surprising, I am sure.
12 I shall try to make sure that your Lordship gets it and
13 Mr Irving in good time before the hearing starts tomorrow.
14 MR JUSTICE GRAY: Yes.
15 MR RAMPTON: But I will be surprised if I am on my feet for
16 even more than a part of tomorrow morning.
17 MR JUSTICE GRAY: Good. Mr Irving, you are proposing to do the
18 same thing, as I understand it?
19 MR IRVING: I was hoping for some kind of guidance from your
20 Lordship. If your Lordship would mark in bulk or inform
21 me in bulk at some time which passages you felt were not
22 proper to deal with orally or in detail. It is a detailed
23 submission which I have made to your Lordship and your
24 Lordship may feel that some of the matters are too
25 detailed to be dealt with in a closing statement.
26 MR JUSTICE GRAY: I think I will give you a bit of guidance
. P-4
1 because, having read yesterday’s 56 pages, and I do not
2 say this critically but it did appear to me that there was
3 a great deal on the topic about which you obviously feel
4 passionately, namely what you see as being a conspiracy to
5 bring your career as an author to a premature end. Those
6 are not your words, I appreciate.
7 MR IRVING: I astutely avoided that word.
8 MR JUSTICE GRAY: No, but there is an awful lot on that topic.
9 Much of it did not appear to me to have anything to do
10 with the Defendants. You may take a different view, but
11 I am not sure that the evidence suggests that the
12 Defendants are as involved with all the things of which
13 you are complaining as you suggest. I, therefore, rather
14 doubt whether it would be appropriate for you to use this
15 court as a platform for what one might call a general
16 attack on the conspirators, as you regard them.
17 MR IRVING: That is precisely the view that I expected from
18 your Lordship which I obviously anticipated in the letter
19 that I attached to the document.
20 MR JUSTICE GRAY: Yes.
21 MR IRVING: I will edit substantially with that in mind before
22 I come to make the oral presentation.
23 MR JUSTICE GRAY: Yes.
24 MR IRVING: It will remain a part of the submission that I make
25 to the court, but it will not be put in the oral part of
26 the submission, if I can put it like that.
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1 MR JUSTICE GRAY: Yes. I think that is sensible, but beyond
2 that I do not think I can really give you much guidance.
3 If you were able to hand in what you were proposing to say
4 in time for me to look at it, then if there is anything
5 I think that is for one reason or another objectionable,
6 or indeed Mr Rampton does, then you can be told and you
7 can make submissions if you want to why you should be
8 allowed to say it.
9 MR IRVING: I think I have a very astute feel for the way the
10 court is feeling in this matter and, having got it off my
11 chest, if I can put it like that, I will limit what
12 I actually say to the matters which I consider to be of
13 relevance.
14 MR JUSTICE GRAY: Yes. What is at the heart of it, obviously,
15 are criticisms that are listed in section 5.
16 MR IRVING: Well…
17 MR JUSTICE GRAY: 1 through, well, to the end.
18 MR IRVING: The problem that I had, of course, is that not
19 having been able to cross-examine the Defendants in this
20 matter which would have brought forward the links which
21 I am sure are there, this was the material which was
22 assembled with that in mind. They have avoided that
23 difficulty by not presenting their witnesses for
24 cross-examination.
25 MR JUSTICE GRAY: Yes. I understand how you feel about that.
26 MR IRVING: And I wanted, nonetheless, to put it before your
. P-6
1 Lordship. I also put a certain amount of explanatory
2 material in the footnotes which I was not proposing to
3 read out, purely to point your Lordship to where the
4 documents are so as far as I know they are in the bundles
5 or were they are in the daily transcripts.
6 MR JUSTICE GRAY: Yes, good. Well, then that is …
7 MR RAMPTON: There is only one other thing I need to do, I am
8 sorry, it is to hand in a list of corrections — they are
9 mostly typographical errors and missing references — for
10 our long submission, if I may do that.
11 MR JUSTICE GRAY: Yes. It is for you to make such oral
12 submissions as you wish.
13 MR RAMPTON: I am sorry?
14 MR JUSTICE GRAY: Are you going to make any oral submissions?
15 MR RAMPTON: I am, tomorrow, yes.
16 MR JUSTICE GRAY: Tomorrow, right.
Part II: Preparation for Closing Arguments (7.17 to 31.10)
17 MR IRVING: I do not know whether this is the right point to
18 your Lordship’s attention to the fact that I am
19 challenging now the Muller document, purely on the basis
20 that it has not been provided to me in the way that your
21 Lordship ordered the August 1st 1941 document, and this
22 might be the place with which to deal with that. I
23 have dealt with it in the submission that I handed in this
24 morning.
25 MR JUSTICE GRAY: Well, you will have to direct me to where it
26 comes because, obviously, I have not read it.
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1 MR IRVING: I have not got it with me, my Lord, but, basically,
2 the document was supplied to me on the weekend. It does
3 not advance our knowledge as to the original document or
4 the original file. There are no surrounding documents
5 provided with it. I have not been able to make any more
6 detailed researches into the nature of the document. So
7 I have made a submission in the document I have handed
8 your Lordship, both on the admissibility of that letter
9 and, if your Lordship is minded to admit the letter in
10 evidence, nonetheless, also on the content of the letter.
11 MR JUSTICE GRAY: Well, this is all a bit opaque to me. Are
12 you able to point to where you deal with this in your
13 revised closing statement? I simply do not know my way
14 around it all because I have only seen it within the last
15 couple of minutes.
16 MR IRVING: It was finished at 5 o’clock this morning.
17 MR JUSTICE GRAY: I can understand that. Even so, if I am
18 going to make sense of what you are telling me about the
19 Muller document, I need to have the references, do I not?
20 MR IRVING: I shall have to hold that over then, my Lord, until
21 tomorrow.
22 MR RAMPTON: My Lord, I simply do not understand this. I have
23 never understood, apart from the fact that he does not
24 like its contents, what Mr Irving’s problem with this
25 document has been. We have many documents in the file
26 which are original Nazi documents headed “Abschrift” by
. P-8
1 the person who made the copy because that is what they
2 are. They are copies of original documents that have
3 disappeared, but they are contemporaneous copies.
4 We now have have three copies of this document,
5 one from Moscow which is where the original copy is held
6 in the archive. That is the one that looks like that. It
7 has a front cover that looks like that. Your Lordship has
8 had all these, I think?
9 MR JUSTICE GRAY: I do not remember that front cover. Can you
10 give me the reference? I am bound to say I have found it
11 in trying to prepare my judgment, extraordinarily
12 difficult because of the way in which the documents have
13 been got together, but if you can give me the reference to
14 it?
15 MR RAMPTON: It is in N1. I have not got N1 here,
16 unfortunately, but its date is 1st August so I can very
17 quickly find it.
18 MR JUSTICE GRAY: Page 49?
19 MR RAMPTON: Yes. Page 49. I do not have it here, I am
20 afraid, but the 49, the actual copy of which we now have
21 three copies is at page 51.
22 MR JUSTICE GRAY: Yes. I am just reminding myself of what the
23 points were that Mr Irving took and he will tell me if
24 there are any others. Firstly, it is an Abschrift;
25 secondly, it has a rather security classification given
26 its contents, just “Geheim”.
. P-9
1 MR RAMPTON: There are plenty of those.
2 MR JUSTICE GRAY: And also Mr Irving, I think, said that he had
3 been told by the German Federal archives that the document
4 is not to be found in the file from which it purports to
5 come.
6 MR RAMPTON: Well, the explanation for that, I know not. As
7 I said, my speculation is that it is just a reference to
8 the wrong file. What I do now know, and Mr Irving knows
9 and your Lordship knows, is that the original document,
10 the original Abschrift, is held in Moscow. A copy of that
11 has been sent to us from Moscow, sent to Dr Longerich.
12 There is another copy at the prosecution centre at
13 Ludwigburg, that we also have. There is another copy in
14 the archive in Munich, that we also have.
15 MR IRVING: My Lord, the problem I have with the document is it
16 is very analogous to the Schlegelberger document. The
17 Defendants were able, in my view, unsuccessfully to attack
18 the Schlegelberger document on the basis of the other
19 documents in the same file. We have been shown just this
20 one document. I am not able to attack it on the basis of
21 other documents in the same file because, firstly, I was
22 given the wrong file number and the Bundesarchiv told me,
23 “This is the wrong file number”.
24 Secondly, we have once again only been shown
25 exactly the same copy which appears to be a copy which has
26 been recopied for various other archives inside Germany.
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1 We have not been told what else is in that file which may
2 give it a completely innocent meaning. I submit that the
3 content of the document is relatively innocent anyway,
4 but, in view of the fact that the Defendants have had two
5 months to provide me with sufficient identifying material
6 which would enable me to identify the file so that I could
7 rummage around in the rest of the file, in the same way as
8 the Defendants were able to do with the Schlegelberger
9 document, I submit that your Lordship should say this is
10 one document that should not be added to Mr Irving’s
11 burden.
12 MR JUSTICE GRAY: Well, there was a stage in the trial when
13 I think it was proposed that the Defendants should write
14 to I think the archive in Munich to try to find out what
15 documents, therefore, in whichever archive this did come
16 from. I do not know whether that happened.
17 MR RAMPTON: I do not know whether it happened or not.
18 MR JUSTICE GRAY: I am right in thinking that was proposed?
19 MR RAMPTON: I cannot even remember that, but I am sure your
20 Lordship is. I really have no recollection of it. The
21 short point surely is this, I would submit. This is on
22 its face an original document. It does on its face say
23 what we say it says.
24 MR JUSTICE GRAY: I am sorry to interrupt, but it is not
25 actually an original document is it, because it is an
26 Abschrift?
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1 MR IRVING: My Lord, it does actually have SS runes in the last
2 line.
3 MR RAMPTON: It is an original Abschrift, that is the point.
4 It was an Abschrift made by some SS person at this time,
5 August 1941. There cannot be any doubting that. If
6 Mr Irving wanted, as it were, to skew or displace the
7 document’s obvious significance, then it was up to him to
8 do so. The document has been in the file since goodness
9 knows when. It is no part of our burden to stand up a
10 document which is on its face quite evidently authentic.
11 MR JUSTICE GRAY: That is not to prevent Mr Irving saying
12 “I challenge the authenticity of the document”.
13 MR RAMPTON: That is right.
14 MR JUSTICE GRAY: I will then have to decide whether that is a
15 historically valid challenge to mount to a document of
16 this kind or whether it is not.
17 MR RAMPTON: Of course, as he does with the document of June 43
18 about incineration. Of course he can.
19 MR IRVING: My Lord, the problem is I have not been able to go
20 behind that document, if I can put it like that, because
21 the wrong file was given to me. They have not provided me
22 with the correct file number. They have provided me just
23 repeatedly with the same Abschrift or copy, and all this
24 has been done literally after the close of business on
25 Friday, including sending me a document which they had
26 received on January 28th, 42 days earlier, and they had
. P-12
1 only just forwarded to me, namely the copy they got from
2 Munich, and this has made it impossible for me to go
3 behind that particular document.
4 MR JUSTICE GRAY: We are launching into the detail of this one
5 document, and there is a lot of other ground to cover, but
6 are you saying to me that you would like to be told and
7 have disclosed to you by the Defendants such
8 correspondence as has taken place between them and the
9 Munich archive?
10 MR IRVING: That would be a very useful order for your Lordship
11 to make. If it turns out that they did not make the
12 enquiries that your Lordship directed, then I would submit
13 your Lordship should properly say in that case, “I will
14 not admit this document in evidence”.
15 MR JUSTICE GRAY: That is stage two as it were. Mr Rampton,
16 why should I not make an order that Mr Irving sees
17 whatever correspondence there has been?
18 MR RAMPTON: Because there is not any correspondence. It was
19 done orally by Dr Longerich so far as I am aware. If
20 there is a letter back from the Munich archive which I do
21 not know about, which Mr Irving ought to see, then of
22 course I will disclose it, or if your Lordship would like
23 to see it.
24 MR IRVING: Then of course we can see if there is any reference
25 to the —-
26 MR RAMPTON: So far as I know, there is no correspondence. Can
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1 I ask your Lordship to look at the fax cover? There are
2 two fax covers.
3 MR IRVING: The analogy, my Lord, would be if I produced only
4 the Schlegelberger document without the surrounding
5 documents in that file.
6 MR RAMPTON: That is as may be. I rather doubt it myself.
7 I have no idea of the size of the file to which this
8 document may belong. For all I know, it may contain
9 thousands of documents. It is not as though Mr Irving is
10 confined to Munich. There are two other archives in which
11 this document resides. You will see this is not Munich,
12 this is Ludwigsburg who has written to Dr Longerich.
13 MR JUSTICE GRAY: What I think should happen, since we are on
14 the authenticity of this document, and what I order shall
15 happen, is that by close of business today, by 5.30 today,
16 Mr Irving should have disclosed to him such correspondence
17 as has come into existence as a result of the Defendants’
18 efforts to track down either the original of this
19 document, or the contents of any file in which the
20 document may reside at whichever archive it is in.
21 MR RAMPTON: Of course. I have no problem with that at all.
22 My worry is that there will not be any documents of that
23 nature because there were not any letters written by
24 anybody.
25 MR JUSTICE GRAY: Then Mr Irving may be able to make some
26 submissions based on the failure to chase up.
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1 MR RAMPTON: Unless, on the contrary, what I do do, or what
2 somebody does, it will not be me, is actually produce to
3 Mr Irving and your Lordship what one might call a file
4 note or memorandum about what Dr Longerich, if it is he
5 who did it, what he actually did.
6 MR JUSTICE GRAY: Yes.
7 MR RAMPTON: He probably will not any longer remember the dates
8 or the times of his telephone calls, but he will certainly
9 have a recollection of the people he spoke to and of the
10 efforts that were made, and I know somebody went to the
11 archive in Moscow on his behalf, to find this document
12 and, if it be the case, any surrounding documents of any
13 relevance.
14 MR JUSTICE GRAY: If you would do that, either disclose the
15 documents or in the form of a memorandum from Dr Longerich
16 or those instructing you, let Mr Irving know and me what
17 attempts have been made to locate anything that will help
18 on the authenticity of the Muller document.
19 Mr Irving, it is for you to take your own course
20 as regards any submissions you want to make, based on your
21 written closing statement. Take your own course.
22 MR RAMPTON: My Lord, before one leaves the question of this
23 document, Mr Irving has, I fear not for the first time and
24 I say that advisedly, actually not well represented what
25 was said in court about this document. What he actually
26 said, and this is on page 126 of Monday 28th February
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1 which is day 26, and we are talking about this Muller
2 document: “I would like to see either a facsimile or to
3 know reliably where the document is”. Both those requests
4 have been complied with. I will still do what your
5 Lordship asked.
6 MR JUSTICE GRAY: Do not let us spend too long on this but what
7 I have noted for myself — I may have got it wrong, I do
8 not know — during the course of the trial Mr Irving
9 sought to enlist the assistance to verify the authenticity
10 of the Muller document by obtaining copies of the other
11 documents contained in the file of the Munich Institute of
12 History where the Muller document was found. That is what
13 I believe happened at some stage but I have no idea on
14 which day.
15 MR IRVING: My Lord, it is not only the authenticity, it is
16 also the purport of the document, if I can put it like
17 that.
18 MR RAMPTON: I believe your Lordship’s note may not be
19 precisely accurate.
20 MR JUSTICE GRAY: Can somebody track it down?
21 MR RAMPTON: I am told, I have not done it of course, that
22 those around me, including Miss Rogers and my instructing
23 solicitors, have searched transcripts for this last week.
24 The bit I just read was the relevant bit, and Mr Irving
25 said on page 128 of the same day: “I need to know the
26 actual file number of course. I need to know the correct
. P-16
1 file number”. Your Lordship said: “That is fair enough,
2 Mr Rampton. When you have found out which file number or
3 numbers it is in, will you pass that on to Mr Irving?” In
4 fact, we did a good deal more than that, because we
5 discovered the document, as I say, in three different
6 archives, and he has had all three copies.
7 MR JUSTICE GRAY: I think the passage you just read out pretty
8 much bears out what I had in my note, if I may say so, but
9 I think we are getting a little bit bogged down in the
10 Muller document. Yes, Mr Irving.
11 MR IRVING: My Lord, I have no further submissions to make,
12 I do not think, unless your Lordship wishes to remind me
13 of one which I ought to have made. I think that
14 everything is contained in my closing statement, which
15 I intended to submit in that way. I was going to submit
16 to you the contents of bundle E, but I have now done that
17 in my closing statement, and I shall now take out of that
18 closing statement what your Lordship avers is of less
19 relevance.
20 MR JUSTICE GRAY: I hear what you say. My understanding was
21 that, when we were discussing closing speeches, what was
22 proposed was that there should be an exchange of written
23 speeches, written notes of what was going to be said by
24 way of speeches or closing submissions. That date slipped
25 and I totally understand why it slipped, but I had thought
26 that the plan was that you would spend today, and Mr
. P-17
1 Rampton would spend tomorrow, elaborating on what you
2 provided in writing. If you do not want to, there is no
3 reason why you should. That is what I recall as having
4 been the plan. Mr Rampton, am I wrong about that?
5 MR RAMPTON: I think that was what I might call stage one.
6 I think that and again I am doing it only from memory, my
7 recollection was on the last hearing day, which date
8 I forget, what in fact emerged or evolved is on written
9 submissions each side would make a shorter, much shorter,
10 oral submission. I have to go first as Defendant, a
11 strange procedure it is, but there it is, that is what
12 happens. I have to go first and I was given the first
13 half of tomorrow and Mr Irving, I think, the second half.
14 That is how I had read the transcript.
15 MR IRVING: That is certainly how I understood it also, my
16 Lord.
17 MR JUSTICE GRAY: If you understood it that way. I am rather
18 puzzled why we have all turned up today.
19 MR RAMPTON: I agree; we thought, like your Lordship, first,
20 that Mr Irving might have something to say about our long
21 written submission, but I expect he has not had time to
22 read it. Second, and more particularly, there was going
23 to be an oral submission about the admissibility of his
24 file E, his global file. He now says that he has made
25 that, in effect, in writing. I am quite content with that
26 and probably I shall not even respond to it; Miss Rogers
. P-18
1 might write a note about the law.
2 MR IRVING: I think the way I have done it in the closing
3 statement is the proper way to do it, my Lord. That gives
4 it the proper way and it avoids going through the very
5 lengthy file of documents that we had.
6 MR JUSTICE GRAY: Just explain to me what you both thought was
7 going to be discussed then.
8 MR IRVING: I had thought, and I am sure Mr Rampton was of the
9 same impression, that your Lordship was going put to us
10 one or two questions concerning the documents that we have
11 supplied to your Lordship over the weekend, namely the
12 oral statements in their then existing state.
13 MR JUSTICE GRAY: How can I put questions to you in relation to
14 a document which I received from you this morning?
15 MR IRVING: You have certainly received the statement from
16 Mr Rampton and I think both of us — this is certainly the
17 result of conversations I had with the instructing
18 solicitors over the weekend — this is what we anticipated
19 would be happening today, that your Lordship would be
20 clarifying final matters, dotting the remaining Is and Ts
21 before we reassembled tomorrow for the oral submissions.
22 MR JUSTICE GRAY: Well, I will be measured in what I say, but
23 I had expected to get a little bit of assistance really
24 from both sides. But if you are both saying that you
25 stand by what you submitted to me in writing and you make
26 your public statements tomorrow, which I do not think will
. P-19
1 help me particularly in the task that I have, well, so be
2 it, if that is what you are both telling me.
3 MR RAMPTON: That is my understanding of what was to happen.
4 I had suggested to your Lordship, and I believe your
5 Lordship agreed, that this was a peculiar case, and I do
6 not mean that in any sinister way, but it is a case which
7 has some peculiar public importance, legitimate public
8 importance. Your Lordship took the view, and I believe
9 rightly, that there should be, unusually for a case tried
10 by judge alone, a degree of oral statement at the end of
11 the case.
12 My recollection is — somebody is trying to find
13 the transcript of day 30 — that one of the things that
14 was raised when we returned to court on that day, which
15 I think was probably a Monday, was this question of how
16 those oral submissions should be structured. I think what
17 happened was that your Lordship said either yesterday or
18 today there should be any submissions made, if there were
19 any, about the long written submissions which your
20 Lordship already has.
21 MR JUSTICE GRAY: Yes.
22 MR RAMPTON: And that on Wednesday the day would be shared with
23 the much shorter oral summaries.
24 MR JUSTICE GRAY: That bit I have no problem with. I took
25 the view that was an appropriate course to take in the
26 unusual circumstances of this case. I am really thinking
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1 more now about what I had got the impression was going to
2 happen, either today or, indeed, yesterday or perhaps part
3 of tomorrow, which is perhaps some assistance, oral
4 assistance, in relation to the issues which I have got to
5 decide, but I, obviously, had misunderstood what you both
6 had in mind.
7 MR IRVING: My Lord, I make such submissions in the opening
8 paragraphs or opening pages of my closing statement, the
9 kind of way that I believe your Lordship should think.
10 MR JUSTICE GRAY: Let me explain why I am a bit unhappy about
11 this. Just to take an example at random, and this is at
12 random, Goebbels diary entry for 22nd November 1941 —
13 Mr Irving, this is from your submissions — well, you make
14 your case in two paragraphs about that. Well, that is
15 fine if that is where you want to leave it.
16 MR IRVING: My Lord, your Lordship will —-
17 MR JUSTICE GRAY: I am just bit a surprised.
18 MR IRVING: Your Lordship will find that on several of the
19 issues that your Lordship included in your list I have
20 made no submission whatever because I am confident to rest
21 on what I stated in the witness stand. There has been
22 enough paper generated by this case already, and I do not
23 think your Lordship will pay overmuch attention to them.
24 MR JUSTICE GRAY: Well…
25 MR IRVING: In that particular entry that your Lordship is
26 referring to, I think I brought out the salient points.
. P-21
1 MR RAMPTON: So far as we are concerned, my Lord, we delivered
2 to your Lordship, I think, I hope reasonably early
3 yesterday morning, 9/10ths of what we had written. It is
4 although bulky for somebody who has a familiarity with the
5 case such as your Lordship, it does not actually take very
6 long to read.
7 MR JUSTICE GRAY: No, I have read it.
8 MR RAMPTON: Good. Now there are some few additional pages.
9 MR JUSTICE GRAY: Those I have not read because they only
10 arrived this morning.
11 MR RAMPTON: What we have done is to follow as faithfully as
12 possible the written scheme which your Lordship drafted
13 and, as also your Lordship indicated we should, we have at
14 the beginning of each section written an introductory
15 passage in most cases.
16 I have no comment to make about what we have
17 said, I hardly could since I am one of the principal
18 authors of it. Unless it is unclear or wrong, I would not
19 at this stage expect to have to say anything more about
20 it. I had supposed that it was possible that either your
21 Lordship or Mr Irving might have some questions or some
22 objections to some part of it. If not, then I have
23 nothing more to say about it. I have not anything at all
24 to say about Mr Irving’s submission (a) because we did not
25 have the whole of it when it arrived, I do not know when,
26 last night or early this morning, I do not know, and we
. P-22
1 did not have the whole of it, and (b) I have not read it
2 in any way because I have not had time. We still have not
3 got the whole of it, no.
4 MR JUSTICE GRAY: Well, let us not waste more time. Both sides
5 are taking the position they do not want to add anything
6 to what they have submitted in writing and they do not
7 want to say anything about the other side’s submission.
8 MR RAMPTON: All that I shall do tomorrow is summarize, in
9 effect, and largely not for your Lordship, obviously, for
10 the wider public the effect of this fat file because I do
11 not suppose for a moment that everybody who might be
12 interested is going to read that.
13 MR IRVING: My Lord, I was going by past experience when
14 I prepared this. In 1970, the action I was involved in
15 then, Mr David Hurst made his learned submissions to the
16 court in his closing speeches which lasted two or three
17 hours then Mr Colin Duncan replied on my behalf.
18 MR JUSTICE GRAY: If I may say so, that was rather different.
19 That was a jury action, as I remember, and nobody had to
20 make a reasoned judgment at the end of it.
21 Well, that concludes today’s business and I do
22 apologise to the members of public who came perhaps
23 expecting they were going to listen to something today,
24 but that is my expectation too and we were all wrong.
25 MR RAMPTON: We had tried to deal with that. I think, in fact,
26 Miss Rogers explained this to your Lordship’s clerk, and
. P-23
1 I am not blaming him if it did not get through at all. We
2 had realized that today might be a non-event which,
3 largely speaking, it has proved to be, and we knew that,
4 as one might say, the big event was going to be tomorrow,
5 so what we did was we actually put out a press release,
6 not only in this country, but in America, in the hope that
7 people would be deterred from coming today and would know
8 that tomorrow was the right day to attend.
9 MR JUSTICE GRAY: I remember the problem about having to revise
10 the date when you were going to make your, as it were,
11 public statements, if I can call them that. The message
12 that I am afraid I certainly had not received was that
13 today was going to be a non-event because there were not
14 going to be any final speeches on either side for my
15 benefit as opposed for public consumption. I am really
16 surprised, I am bound to say, but there we are.
17 MR RAMPTON: I would have had something, might have had
18 something, to say about Mr Irving’s written submission had
19 I had it in time and had I read it. I do not know. It
20 may be that when we have read it, we may have something to
21 say. I rather doubt it. Mr Irving has had the
22 opportunity of going through what we have written.
23 Apparently, he has nothing to say about it at this stage.
24 MR IRVING: I opened it here in the courtroom this morning. My
25 Lord, can I ask one technical question? Would it assist
26 your Lordship if I provided my closing statement on disk?
. P-24
1 MR JUSTICE GRAY: No, I think I am very happy with it in hard
2 copy. Thank you very much.
3 MR IRVING: If the order of events was different, I would be
4 quite happy to have started with my closing speech today,
5 but the order of events is that the Defendant has the
6 word, the penultimate word, and I do not think probably we
7 should disturb that.
8 MR RAMPTON: The only other thing which I can add, which might
9 be helpful, is that Miss Rogers says, and she must be
10 believed, that, if your Lordship has any difficulty
11 finding any of the references, ours is, I think, now fully
12 referenced and should not a problem, but one knows how it
13 is. Documents do disappear, it is a fact of life. Or,
14 more particularly perhaps, if a document is referred to in
15 Mr Irving’s closing submission, we will give every
16 assistance to your Lordship in trying to find them during
17 the course of today.
18 MR JUSTICE GRAY: Yes. I do not know what you say in some of
19 your sections, but one particular aspect which I think I
20 did mention I thought was important and required thought,
21 and I certainly had hoped to have some assistance in
22 relation to it, was what I think in the end we called
23 assessing Mr Irving as an historian. I do not what you
24 say in that section, but I think I noticed there is not a
25 section at all. You said nothing on that.
26 MR RAMPTON: I cannot remember which section it is. In fact,
. P-25
1 section 9 is, I think, about eleven pages long.
2 MR JUSTICE GRAY: I do not seem to have got it. I may well
3 have put it in the wrong place.
4 MR RAMPTON: It is eleven pages of single spaced typescript.
5 MR JUSTICE GRAY: No, I do not have it.
6 MR RAMPTON: Here is another copy.
7 MR JUSTICE GRAY: It was not handed in this morning.
8 MR RAMPTON: Again, it follows the scheme of the relevant
9 paragraph in the written skeleton.
10 MR JUSTICE GRAY: I cannot really claim to make sense of that,
11 just seeing it now.
12 MR RAMPTON: No, of course not. It is a late section in the
13 submission, and it needs to be read in the light of
14 everything that has gone before, particularly section 1 of
15 paragraph 5, the historiography section, but also, of
16 course, the Auschwitz section.
17 MR JUSTICE GRAY: Yes.
18 MR IRVING: One other point I am unclear about is precisely
19 which matters the Defendants are now claiming protection
20 of section 5 over.
21 MR JUSTICE GRAY: As to that, again, if we are not having oral
22 argument, it is only right that you should know how I was
23 intending to approach it. This would normally be
24 ventilated in the course of submissions. Effectively, it
25 is really for me to decide and evaluate the seriousness of
26 the various imputations against you.
. P-26
1 MR IRVING: Whether section 5 applies?
2 MR JUSTICE GRAY: Yes. I think you understand the way section
3 5 works, and to the extent that there may be unproven some
4 relatively minor imputation against you, then it may be
5 that I would invoke section 5 and say, the fact that that
6 particular imputation has not been proved by the
7 Defendants is not going to mean that their defence of
8 justification as a whole fails.
9 MR IRVING: But some matters appear to have been left in limbo
10 like, for example, the question of whether there was a
11 breach of agreement over the Goebbels diaries in Moscow.
12 MR RAMPTON: No, it is not in limbo at all. It is treated
13 fully in the Moscow section. Our conclusion about section
14 5 is that it is no application in this case because
15 everything that Professor Lipstadt wrote is true in
16 substance.
17 MR JUSTICE GRAY: Quite, but one has to cater for the
18 possibility. I think we either do have closing submissions
19 or we do not. I think just having odd thoughts being
20 canvassed is just not the way to go about it. I am making
21 every allowance, Mr Irving, for the fact that you are a
22 litigant in person.
23 MR IRVING: Totally ignorant of the law, yes.
24 MR JUSTICE GRAY: You have the opportunity to address me on
25 whatever you wish to address me on. I do not know whether
26 you have had the chance to absorb what the Defendants have
. P-27
1 said in their closing submissions. If you want to do it,
2 I think now is the opportunity to do it.
3 MR IRVING: Mr Rampton says that he is not pleading section 5
4 on any of the issues in their pleadings of course, in
5 their defence, that is.
6 MR RAMPTON: I do not say that. What I say is that we do not
7 believe that it has any application, because everything we
8 said is substantially true. That does not mean that, if
9 your Lordship does not agree with that, section 5 may not
10 need to be applied.
11 MR IRVING: They withdrew the Moscow witnesses and their expert
12 reports and the documents that went with them. They have
13 adduced no evidence whatsoever in justification of the
14 allegation that I breached the agreement in the Moscow
15 diaries therefore, and I cannot see therefore —-
16 MR JUSTICE GRAY: I am in the difficulty that I have to admit
17 that I have not got as far in the Defendants’ submissions
18 as the Moscow section, so I do not know, because I had
19 expected that I was going to be taken through the
20 submissions this morning or today.
21 MR IRVING: My Lord, I have dealt —-
22 MR JUSTICE GRAY: So I cannot help you on that.
23 MR IRVING: I dealt, probably quite improperly then, with the
24 matter in my closing submissions where I dealt with the
25 allegations about the Hamas and Hisbollah and Farakan and
26 Pramyat in three or four pages in fact of my closing
. P-28
1 statement and strongly suggested that section 5 should not
2 apply.
3 MR JUSTICE GRAY: Mr Rampton has not really addressed that
4 point, but I am well aware there is a great deal in
5 Professor Lipstadt’s references to you in her book
6 which have not been sought to be justified at all.
7 MR IRVING: Yes.
8 MR JUSTICE GRAY: So it seems to me that section 5 has got to
9 play some part, whether it avails the defendants is
10 something that I will have decide.
11 MR IRVING: The allegation that I sit in my office beneath a
12 portrait of Adolf Hitler and that kind of thing, for which
13 again they have pleaded no justification, which will
14 certainly go to my seriousness as a historian. I was
15 hoping that we were going to obtain some definitive list
16 from the Defendants of what they do intend to put in that
17 particular sand bucket.
18 MR JUSTICE GRAY: They are entitled to say, we say everything
19 is true, full stop. As I understand Mr Rampton, that is
20 the way it is put in the written submissions, but I think
21 I have to approach it on the basis that section 5 is
22 pleaded and it is there if the defendants need it.
23 MR RAMPTON: Then, my Lord, it is up to the Plaintiff, the
24 Claimant, to point to those — I do not mean in any sense
25 that it is a great deal — few parts of what Professor
26 Lipstadt wrote, specific parts, that the Defendants have
. P-29
1 not sought specifically to justify, and to say those parts
2 are outside section 5 because they are so serious; what is
3 more, I am entitled to damages for them because they are
4 distinct and severable allegations and not part of a
5 common sting.
6 MR JUSTICE GRAY: I think, to be fair, from what I have read of
7 Mr Irving’s closing statement, he makes very clear what he
8 says has not been proven by the Defendants.
9 MR IRVING: Round about page 5 onwards.
10 MR JUSTICE GRAY: He does not perhaps dot the I by saying, “and
11 that is a severable allegation, which means that, it not
12 having been justified, I am entitled to damages”, but that
13 is the thrust of the way he puts it, as I understand it.
14 MR IRVING: I did look at Gatley last night on the severable
15 allegation aspect of it and I am not sure that that is
16 relevant in this particular matter. I tried to work it in
17 but I found that I could not.
18 MR JUSTICE GRAY: Whether it is severable or not?
19 MR IRVING: Whether it is severable or not.
20 MR JUSTICE GRAY: There may be something in that. I really do
21 not, if I may say so, think that this is a satisfactory
22 way of dealing with it.
23 MR IRVING: Not in my closing submissions?
24 MR JUSTICE GRAY: If you want to make a closing speech and make
25 whatever points you like, then of course please do so,
26 Mr Irving, and then Mr Rampton can separately reply to
. P-30
1 those submissions, rather than having odd points batted
2 around, because it is becoming unstructured and completely
3 unhelpful.
4 MR IRVING: May I therefore now put to the court by way
5 submission the pages of this relating to Pamyat and
6 Hisbollah and those allegations?
7 MR RAMPTON: I really find this very difficult. I have not had
8 Mr Irving’s submission long enough even to have had time
9 to look at it. If I had had, I might have had something
10 to say about it. It is as simple as that. I do not think
11 at this stage in the case it is satisfactory. I am
12 leaving aside entirely the inconvenience to your
13 Lordship. It is not satisfactory to the other party that
14 the Claimant should suddenly stand up and make a row of
15 oral submissions.
16 MR IRVING: My Lord this submission is —
17 MR RAMPTON: I am sorry, Mr Irving. If Mr Irving has serious
18 submissions of fact and law to make about the defence and
19 the way in which it is presented, then we should have them
20 in writing and in time to respond to them. We have not
21 had that opportunity.
22 MR JUSTICE GRAY: Mr Rampton, I am sorry, I had expected that
23 today you would be making your submissions, and you do not
24 want to make them.
25 MR RAMPTON: But they are all in here, both of law and of fact,
26 in seriatim and in detail. I have nothing to add to what
. P-31
1 I wrote.
2 MR JUSTICE GRAY: Very well. Subject to either of you, I think
3 I will adjourn now and we will resume tomorrow, but
4 I would like to be absolutely clear in my own mind,
5 because there seems to have been some confusion about
6 today, what it is that is proposed to be done tomorrow.
7 Are we just having statements for public consumption? If
8 so, how long is each side likely to take and is there
9 going to be anything else dealt with tomorrow?
10 MR RAMPTON: No. I have no present intention and, if I should
11 be prompted to change that, of course, I will tell your
12 Lordship. I have no present intention of making any
13 submissions on the facts or the law that are not contained
14 in this file. I therefore intend, with your Lordship’s
15 permission, to make a relatively short, maybe an hour and
16 a half, two hour statement, setting out in summary what
17 the Defendants’ case is to show that what Professor
18 Lipstadt wrote and Penguin published was in substance true
19 in every single respect. That includes, for example, the
20 Hitler portrait, which is a mere aspect of a wider
21 allegation of Hitler partisanship. It includes the
22 Stockholm meeting, which in its natural meaning is merely
23 a particular example of a much wider picture, that is to
24 say adherence to and association with right-wing,
25 anti-Semitic principles and people.
26 MR IRVING: My Lord, I must then ask you to advise me whether
. P-32
1 tomorrow I should make a separate submission on section 5
2 matters, or whether I can leave it bound up in my closing
3 statement as I do.
4 MR JUSTICE GRAY: I would leave it bound up if I were you, but
5 what are you proposing to do? Like Mr Rampton, speak for
6 an hour and a half, two hours?
7 MR IRVING: Based upon a cut down version of this text, I will
8 speak the same length as Mr Rampton.
9 MR JUSTICE GRAY: Very well. 10.30 tomorrow.
10 (The court adjourned until the following day).
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. P-33