Archive/File: people/i/irving.david/libel.suit/transcripts/day007.11
Last-Modified: 2000/07/20

   MR JUSTICE GRAY:  But thinking of the evidence, which is not at
        the top of my mind at the moment, but thinking of the
        evidence that the defendants have adduced in relation to
        Auschwitz, one could put it into various categories, as
        indeed the Defendants do in their summary of case, it
        seems to me that most of what they are relying on was
        probably known to you, but if not known to you was
        certainly readily available to you; was it not?
   MR IRVING:  I think that is very bold perception, my Lord.

.          P-90



   MR JUSTICE GRAY:  Well, you tell me, what --
   MR IRVING:   I would certainly challenge that.
   MR JUSTICE GRAY:  -- categories of evidence you say you really
        have no knowledge of?
   MR IRVING:  For example, the entire records in Moscow. I am not
        an Holocaust historian, my Lord.  I thought I had brought
        this matter across to your Lordship satisfactorily that I
        am know as an historian and a biographer of the top Nazis
        and that the Holocaust is very much a section of that
        material.  But one cannot, after all because one is
        writing about the atomic bomb learn nuclear physics.  One
        would not be considered to be negligent that one had not
        become a Nobel Prize winning nuclear physicist before
        writing about the history of the atomic bomb, if I may say
        so. I am asking your Lordship to keep this negligent
        element before yourself and you say to yourself, this does
        not go to issues as pleaded, and this is just an attempt
        to bring in material for the newspapers, put it like that.
   MR JUSTICE GRAY:  Let me ask you this question, and do not
        answer if you do not want to, but if I were to come to the
        conclusion that there is a whole range of formidable
        evidence of one kind and another.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:   Camp officials, eyewitnesses, scientific
        evidence, evidence of construction at the gas chambers and
        the like; all of which was there, but you paid no

.          P-91

        attention to it, is that something you would accept?  Is
        that the way you put your case?  That you went for broke
        on the Liechter Report.
   MR IRVING:  It depends upon the degree of intensity which would
        have been appropriate.  If I was intending to go on, for
        example, a BBC talk show and I was likely to be asked
        about Auschwitz should I therefore spend $5 million on
        sending researchers into the archives around the world?
        It is a degree of proportionality which comes into it, my
        Lord.  I am sure your Lordship appreciates that point and
        bear it constantly before yourself.
   MR JUSTICE GRAY:  Yes, but I am not sure you have really quite
        grasped the nettle of the question; is it your position
        that the Defendants really are not entitled to rely on the
        body of evidence that I have just listed for you because,
        although it was available you did not refer to it; you did
        not familiarize yourself with it?
   MR IRVING:  I am not interested to hear Mr Rampton justify
        doing precisely that.
   MR JUSTICE GRAY:  Well, I think he will find it difficult to do
        so unless you have made clear what your position in
        relation to these various categories of evidence is.  If
        you are saying, "yes, I accept it is there and I simply
        did not attach any weight to it"; then he may say, "well,
        what is the point of calling the evidence?" That may not
        be right, but he may say that.  That is why I am asking

.          P-92

        you.  I am trying to get you to come clean, as it were,
        what your stance is in relation to this evidence.
   MR IRVING:  I am mortally wounded by the suggestion that I am
        not coming clean on this.
   MR JUSTICE GRAY:  I did not mean that in any pejorative sense.
        You see because this is really what the argument is, is
        this evidence relevant?  If you say, "well, I do not
        quarrel with it, I hear what you say about it all being
        there, but it just did not feature in my thinking about
        Auschwitz", well and good.
   MR IRVING:  My Lord, what I have had to do, because
Auschwitz
        has bulked so large in the Defendants' case I have to
        become something of an expert.  I have had to get
involved
        with consultants and discussed the issues with them
and
        learn all sorts of things that I had no need to or
desire
        to learn at the time I wrote these books, or at the
time I
        made the utterances.  I do not think that should have
been
        necessary.  I would have hoped that your Lordship
would
        have ruled at a relatively early date in this trial --
and
        we are still at an early date in this trial that you
will
        not hear evidence, my Lord, I would ask you to bear
this
        in mind, that you will not hear evidence that goes
only to
        the imputation of negligence and that you will only
hear
        evidence that goes to the imputation of deceit.
   MR JUSTICE GRAY:  But you see, you say it comes only into
        the category of negligence, but if you are making

.          P-93



        pronouncements about Auschwitz in what the Defendants
say
        are offensive terms of denying the gassing happened;
are
        not the Defendants entitled to say, well, that really
        flies in the face of the evidence and anyone who is
        prepared to make those pronouncements is not just
        negligent, he is deliberately deceiving himself.
   MR IRVING:  Very well.
   MR JUSTICE GRAY:  I do not know whether that is the way
they
        put the case or whether it is not.  I think it may be.
   MR IRVING:  I accept that but then the element of
        proportionality comes into it.
   MR JUSTICE GRAY:  Yes.
   MR IRVING:   To make that kind of pronouncement one is not
then
        required to spend $5 million research, one is required
to
        inform oneself to an adequate degree.  But I still ask
        your Lordship to be on the alert every time that
        Mr Rampton either implies or actually says he ought to
        have known this, to say to yourself, yes, but on the
basis
        of proportionality should he really have gone to that
        degree?  Should he really have done that depth of
        research?  Was he really expected to fly to Moscow and
        bang on the door and say "let me in"?
   MR JUSTICE GRAY:  Yes, do not think I am not taking the
point
        you are making.
   MR IRVING:  Because that goes purely to the negligence
issue
        and not the deceit issue, which is the only one they
have

.          P-94



        pleaded.  My Lord, I must emphasise the fact they have
not
        pleaded negligence.  It was open to them to plead
        negligence at the time that they drew up their
pleadings.
        I am not criticising learned counsel at all for the
way
        they have drawn their pleadings, but if they intended
to
        plead negligence the way that they have been hinting
at
        throughout the first six days of this trial, then they
        should have pleaded it.
   MR JUSTICE GRAY:  I want to take a bit of time on this
because
        I think this may be really quite important to try and
see
        where we are actually going, but just on Auschwitz and
        tell me if you are not able to deal with this, but
just
        take the category of "Camp Officials" I cannot
immediately
        put my ...
   MR IRVING:  The eyewitnesses?
   MR JUSTICE GRAY:  Well, I was thinking more of the camp
        official eyewitnesses, but take them, and I think
there
        are probably about ten or maybe a dozen of them,
something
        like that.
   MR IRVING:  My Lord, we shall be --
   MR JUSTICE GRAY:  Now, the last thing we want to do is
plough
        through each individual account if that really is not
        being to be necessary.  Are you saying in relation to
        them, by way of an example, well, I appreciate that
they
        have said what they are recorded as having said, but I
did
        not know about it when I said what I said in Australia
in

.          P-95



        the 1980s or the States in the 1990s, and, therefore,
the
        worst you can say is that I was negligent; is that the
        line you take in relation to that particular category
of
        evidence?
   MR IRVING:  Finely couched though your Lordship's words are
        I would not use them in precisely that form.  I would
say
        that at the time I made the utterances or wrote the
books
        I was not informed to the degree that I am now am by
        virtue of having had to prepare for this case.  In
1988
        I saw certain evidence which you will be discussing
later
        on, which obliged to me to change my mind about what I
had
        accepted without having gone into it in any detail up
to
        that point.  As a result of this case I have now gone
in
        much greater detail into the eyewitness statements by
the
        camp officials to which your Lordship alluded.  I
still
        have less reason to accept them as being reliable than
has
        the defence, and we shall go through these statements
with
        forensic methods when the time comes to cross-examine
        Professor van Pelt.
   MR JUSTICE GRAY:  Yes, well, I have certainly got your
point.
        Shall I invite Mr Rampton to tell me --
   MR IRVING:  That may be useful.
   MR JUSTICE GRAY:  What his position is.
   MR RAMPTON:  Yes, my Lord, it is really very simple.  We
had
        these last days been dealing with the way in which
        Mr Irving on our case, distorts history, deliberately,

.          P-96



        wilfully distorts history.  In 1988, as your Lordship
        remembers, there was on trial in Canada a man called
        Zundel.  He was on trial for something like inciting
        racial hatred by publishing an Holocaust denial book.
        Mr Irving went to Toronto to give evidence for Mr
Zundell,
        in the course of that exercise he got to read -- I
think
        he met Mr Liechter either then or earlier that year --
and
        he got to read the Liechter report.  He came home and
he
        held a press conference the following year, in which
he
        said: "The buildings which we now identify as gas
chambers
        in Auschwitz were not.  I cannot accept that they had
gas
        chambers there.  There was no equipment there for
killing
        people en masse.  I am quite happy to nail my colours
to
        the mast ... Jews cannot have been killed in gas
chambers
        at Auschwitz".
                  From there on, until 1993, which is the
relevant
        date, he goes into public, into the public arena, and
        repeatedly makes utterances of that kind.  Had he not
done
        so he would not have appeared in the book which forms
the
        subject of this libel action.  One of the meanings
which
        Mr Irving complains of, my Lord, this is paragraph
(vii)
        on page 6 of the Statement of Claim:  "That the
plaintiff
        after attending Zundell's trial in 1988 in Toronto,
having
        previously hovered on the brink now denies the murder
by
        the Nazis of the Jews."
                  That is Mr Irving's -- this is the most

.          P-97



        elementary stage of the whole thing -- that in Mr
Irving's
        case is a defamatory statement by Professor Lipstadt
and
        Penguin Books, who published the book.  That alone
would
        allow as the defence -- the Lucas-Box particulars of
the
        defence indicate that they will do -- that alone would
        allow the Defendants if they wished to do so to prove
that
        he was wrong as a matter of fact.  That is paragraph
6.1
        of the Lucas-Box on page 2 of the defence, that the
        plaintiff has on numerous occasions denied the
Holocaust,
        the deliberate planned extermination of Europe's
Jewish
        population by the Nazis and denied --
   MR JUSTICE GRAY:  Well, I have thought about that, because
I do
        not think either the meaning you have just cited from
the
        statement of claim, or paragraph 6.1 of the Lucas-Box,
        really are defamatory meanings at all.
   MR RAMPTON:  That may well be, but as I say that is the
        elementary -- that is stage one.  As the pleadings
stand
        I could do it.  I do not, as your Lordship knows, put
the
        case like that.
   MR JUSTICE GRAY:  No.

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