Archive/File: people/i/irving.david/libel.suit/transcripts/day007.10 Last-Modified: 2000/07/20 MR JUSTICE GRAY: Shall we have a discussion about Auschwitz now rather than? . P-81 A. We could try to -- I think we will dispose of it before lunch. MR JUSTICE GRAY: If you found that a problem and you want more time, just say so, but why do you not go back to your seat? < (The witness stood down) MR RAMPTON: My Lord, I will sit down because I would like Mr Irving to take this argument. MR JUSTICE GRAY: Yes, Mr Irving? MR IRVING: My Lord, if I can get to the legal precedents out of the way first, it is Edgington v. Fitzmorris with which I am sure your Lord is familiar, the statement by Bowen LJ that the state of a man's mind is as much a fact of the matter as the state of his digestion. What is very material in this case is the state of my mind when I am writing the books. We are partially examining in that, in the materials that we have been going over over the last few days in the proper manner, but I do not think that the state of Auschwitz or the state of what happened during the war years is nearly as material to the issues as pleaded as the state of my mind, if I can put it like that. The issues as pleaded, in my view, bear a strong resemblance to the law in tort, the distinction with which your Lordship will be familiar between deceit and . P-82 negligence. The defence that the Defendants have pleaded is, basically, one of deceit, that I have had documents before me at the time I wrote the books, that wilfully or perversely attached to those documents meanings that no reasonable man could say they could bear. MR JUSTICE GRAY: That is part of the Defendants' case. MR IRVING: That is part of the defence. But they go beyond that, my Lord, in a manner which I would aver a Plaintiff would be tempted to do if he has pleaded initially the case in deceit and, in finding that he is not making that case, he then ventures to throw in negligence as well, although he has not pleaded it. He is not allowed to do that without amending his pleadings and this is a very serious matter for the court to consider. If you find, my Lord, that the Defendants in this action are trying to plead negligence, if I can put it like that, as they have been saying. MR RAMPTON: No. MR IRVING: Mr Rampton -- MR RAMPTON: We are not. MR IRVING: If they are saying, in effect, Mr Irving is a rotten historian, he did not do his job properly. He spoke about Auschwitz, he wrote about Auschwitz and the Holocaust. He ought to have known better, then this is a plea of negligence. They have not pleaded negligence in the pleadings as yet before the court, my Lord, and, of . P-83 course, it is perfectly open to them to go to your Lordship at any time and seek your Lordship's leave to amend their pleadings. It would be a very grave step for them to take because I would immediately ask your Lordship order that all the costs up to that point should be borne by the Defendants. MR JUSTICE GRAY: They have not done it yet, so... MR IRVING: No, my Lord, they are still attempting to plead, effectively, deceit, and I suggest that they have not yet established a substantial case in deceit, but that is outside the realm of this argument. What is far more important is; what is the purpose of looking at what happened in Auschwitz and in the camps of Belzec, Treblinka and elsewhere if it was not known to me at the time I wrote the book. It may be of the utmost interest to history and for the purposes of historiography and it has not escaped me and I am sure it has not escaped your Lordship reading, as you say you do, the press accounts that people hope that this will draw a line under the Holocaust and we shall establish what happened at Auschwitz and so on. That is not the purpose of this case. MR JUSTICE GRAY: Well, at the moment I am with you to this extent, that it seems to me that if you are able to say of any particular piece of evidence relating to Auschwitz, well, it was not available to me at the time, I find it . P-84 difficult at the moment to see how that really is going to assist the Defendant's case. Because their case, as I understand it, is that what you have said about Auschwitz flies in the face of the evidence, and that the inference they ask me to draw is that you must have known that it flew in the face of the evidence. MR IRVING: I ought to have known. There is a subtle difference, my Lord. Must have known -- if they wish to prove I must have known it, I submit that they had to establish that that material was at some material time before me when I wrote either or any of the editions - - MR JUSTICE GRAY: Well, I think "available to you". I think it is not just a matter of whether it was, in fact, before you, because if you knew it was there and you, as it were, put your telescope to your blind eye and ignored it, then that is as good as having seen it, and decided to suppress it, as they would put it. MR IRVING: My Lord, material may very well be there in Moscow or on the far side of the Fiji Islands for all I know but there is a limit to what a reasonable person can expect one historian in my position to do by way of research into a subject which is beyond the purview of the books which he is know to write. MR JUSTICE GRAY: I agree with you, it is a question of degree. MR IRVING: It is a question of degree, my Lord. It is quite possible that the very capable researchers (and I have to . P-85 admire the effort they have put into this case) who are backing learned counsel in this matter for the defence, would have found documents after the expenditure of very consider sums of money, as they have, in the defence of this matter. But no reasonable person can hold that against me that I did not find these documents or come to those conclusions based on those documents and certainly not 30 years ago at a time when none of these documents were available. So it is an argument in negligence which they are trying to make, my Lord, and I am asking that you bear that firmly in mind at the very least. And I have drawn up -- your Lordship will see three guidelines that I would ask your Lordship possibly to accept, possibly with amendments. They are on the first page. MR JUSTICE GRAY: Yes. MR IRVING: Does it go to the proof of wilful deceit, the evidence that the Defendants are adducing? What materials were before the claimant, myself, at the time I wrote the book or books referred to because, of course, we are not just going to refer to Hitler's War. I understand other books are going to be the topic of discussion by the defendants. I respectfully submit that ephemeral spoken utterances particularly extempore, unscripted talks are less material to this action than books and I would like to hear your Lordship's view on that. . P-86 MR JUSTICE GRAY: Well, you are talking about eyewitness evidence here? MR IRVING: No, my Lord, no, I am sorry, you misunderstood me there, that if they are holding to me a talk I have given in Los Angeles or something like that, or an answer I given at a press conference, this should be given less weight than what I have written in the books. The talks are ephemeral, they are here today and gone tomorrow. MR JUSTICE GRAY: That is a comment you can make, but supposing you went on on the record at an IHR conference. MR IRVING: Yes. Does that become a book? MR JUSTICE GRAY: With some extreme remarks about Auschwitz, let us assume that, it seems to me that they entitled to rely on that as an instance of Holocaust denial as they would label it. MR IRVING: It is a matter of weighting, my Lord. That I would ask you to weight each of these utterances and say, well, here he is writing a book which is going to go in libraries and used as a reference work by other historians. Clearly, far more weight should be attached to these than off the cuff remarks he makes at an press conference. I am not thinking of any specific remark. I am not saying that is my own defence pre-emptively, I am just saying that I would just ask your Lordship to weight them accordingly. MR JUSTICE GRAY: I hear what you say. . P-87 MR IRVING: Yes. Have they established -- the second point -- beyond the balance of probabilities, as I understand it, it is in a civil action like this, that the Claimant faced with various alternative interpretations and following as the Defendants wrongly represent an agenda to exonerate Adolf Hitler put fraudulent meanings on these materials before him, i.e. meanings that were so perverse that no reasonable and unbiased man informed by the same materials and expertise could have arrived at those meanings. MR JUSTICE GRAY: No, I think that is putting the case, or asserting that the case against you has to be established at a far higher level than it seems to me that it actually does have to be established. I think what they have to show, or what they may have to show, I have not heard Mr Rampton yet, is that you have misrepresented the facts and that you have done so because you are working to your own ideological agenda. MR IRVING: Wilfully represented, not accidently or negligently. MR JUSTICE GRAY: Not accidently, yes, I am cautious about the "wilfully" because that may not help. MR IRVING: They will have to establish the element of deliberation in that, my Lord, otherwise it does fall under the ambit of "negligence", which they are not pleading. MR JUSTICE GRAY: Yes, and No. 3. . P-88 MR IRVING: What about the element of reasonable doubt, my Lord? Or the balance of probabilities? You say you are not prepared to accept that. MR JUSTICE GRAY: No, I have not said that. MR IRVING: But which is the part of paragraph 2 which you find difficult to accept then? MR JUSTICE GRAY: It is you asserting that the Defendants have to show that you put as you described it "fraudulent meanings" on the materials -- MR IRVING: As opposed to negligently doing it. MR JUSTICE GRAY: What I was -- I accept the point you make on negligence -- suggesting to you is that they may not have to establish quite that, but I am inclined to accept that they will have to establish that this was a non-accidental, false interpretation placed on documents for the reason that you had your own political agenda, and that I think -- MR IRVING: My Lord, for example, the word "haben" and "Juden" is a typical example; was this a deliberate misleading of the word or was it an -- MR JUSTICE GRAY: That is a very good example. MR IRVING: A negligent -- MR JUSTICE GRAY: A very good example, yes. MR IRVING: Thirdly; have they established -- have the Defendants established beyond the balance of probabilities that I wilfully and following that political agenda . P-89 mistranslated or distorted such materials. MR JUSTICE GRAY: I do not find much to disagree with about that. MR IRVING: Yes. MR JUSTICE GRAY: But, Mr Irving, this is all helpful in a way, but I understood we were going to be having an argument about the Auschwitz evidence I am not sure I understand -- MR IRVING: This comes up -- MR JUSTICE GRAY: How this impacts on that. MR IRVING: If they are going to be introducing a lot of evidence about Auschwitz which will no doubt be of the utmost interest to everybody in this court, and at the expense of the person who pays the costs of this action, or persons, I think that your Lordship should rule repeatedly on what falls within the issues as pleaded and pleaded under the ambit of "deceit" rather than of "negligence".
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