The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day018.12

Archive/File: people/i/irving.david/libel.suit/transcripts/day018.12
Last-Modified: 2000/07/24

   MR JUSTICE GRAY:  I must judge you by the standards of perhaps
        not 2000, but the standards at the times when you made the
        remarks you did make which is usually in the 80s and 90s.
   MR IRVING:  But we have a problem here.  I have tried to
        extract from the witness a definition of his criteria for
        the anti-Semitism that he accuses me of.
   MR JUSTICE GRAY:  Perfectly proper.
   MR IRVING:  And we have received only waffle, if I may put it
        like that.
   MR JUSTICE GRAY:  Well, you can say that later, but do not say
        it now.  It is unhelpful.
   MR IRVING:  And I have tried to ask for what specific instances
        of anti-Semitism he has found in my private diaries which,
        surely, are the closest to my state of mind, and we have
        found five words, I think.
   MR JUSTICE GRAY:  He said it has not really been his pigeon.
        He is here for other matters.  You do not have to accept
        that answer, but it is his evidence.
   MR IRVING:  But the charge is levelled, my Lord, at me by this
        witness and by the others and it is a charge that people
        very happily make.  I say that the charge of anti- Semitism
        is the last resort of the scoundrel, very frequently, and
        it is one that sticks, rather like being called a
        Holocaust denier.

.          P-101

   MR JUSTICE GRAY:  Yes, I do not seek to dispute that at this
        stage, but what we are on at the moment, Mr Irving, is
        whether you are entitled to adduce effectively in
        evidence, through the cross-examination of Professor
        Evans, alleged anti-Semitism on the part of Lord Halifax
        and Winston Churchill, and I think that is wholly
   MR IRVING:  Impermissible, very well. Can I at least then
        adduce evidence that the First Defendant has published
        books which contain grossly anti-Semitic passages?
   MR JUSTICE GRAY:  I do not admit -- why do you say that is
   MR IRVING:  Biblical passage.
   MR JUSTICE GRAY:  It is a sort of pot calling the kettle black.
   MR IRVING:  Casting the mote out of their own eye first and
        referring it to John Buchan's '39 Steps', for example.
        I am sure your Lordship is familiar with them.  They are
        the most appalling passages.
   MR JUSTICE GRAY:  You are clutching at a bit of a straw there,
        are you not?  When was that published?
   MR IRVING:  Not recently, but John Buchan became Governor
        General of Canada.
   MR JUSTICE GRAY:  I am trying to give you a lot of latitude,
        Mr Irving.  I think I am perhaps beginning to give you too
        much.  I really just do not think you can just start going
        into alleged anti-Semitism on the part of other people, or

.          P-102

        other companies.
   MR IRVING:  The Defendants in this case have published books
        which are anti-Semitic in my submission and yet -- I will
        merely ----
   MR JUSTICE GRAY:  Let me hear Mr Rampton on that because -- --
   MR RAMPTON:  My Lord, this is a kind of insanity.  I feel as
        though I was in one of Lewis Caroll's book.  Mr Irving
        brought this action in respect of words published by my
        clients.  The only defence is that what is said is true,
        amongst them that Mr Irving is an anti-Semitic.  What can
        it matter that there may have been some author from the
        distant past, the 39 Steps, who also, on some occasion,
        might have made a remark as an anti-Semite?
   MR JUSTICE GRAY:  I wholly agree about John Buchan in the
        1930s, or whenever it was.
   MR RAMPTON:  Suppose my client has published the works of an
        anti-Semite yesterday.  How could it bear upon the
        question of whether or not Mr Irving is an anti-Semite,
        save to the extent that I then stood up and said: "Well
        that Penguin book is not anti-Semitic"?
   MR JUSTICE GRAY:  I think that is right.  I am trying to give
        Mr Irving the benefit of the doubt, but Mr Irving, I
        cannot let this thing ----
   MR IRVING:  My Lord, we bought a copy of this book published by
        Penguin Books two days ago at Books Et Cetera.
   MR JUSTICE GRAY:  If your odds are still on John Buchan, then

.          P-103

        that is really absolutely, if I may say so, hopeless as a
        point, hopeless.
   MR IRVING:  Should political correctness not have required them
        to at least excise these horrendous passages from that book?
   MR JUSTICE GRAY:  No.  Mr Irving, I am afraid we are going to
        have to move on.  I am against you on this.
   MR IRVING:  Are you familiar with the Holocaust, Professor
        Evans?  Are you familiar with the bibliography on
        Holocaust Denial which has been prepared by a specialist
        in this matter, New York City University John Drobniski,
        I think?
   A.   I have to say not very, no.
   Q.   Are you aware that there is such a bibliography?
   A.   Yes.
   Q.   It is a bibliography that is available on the Internet,
        would you accept that?
   A.   Yes, it is.
   Q.   It has gone through several editions?
   A.   Yes.
   Q.   And this bibliography -- is it called Holocaust Denial
        Literature -- is a bibliography?
   A.   I think that is true, yes, to my recollection.
   Q.   Is it compiled by John A Drobniski, D-R-O-B-N-I-S-K-I, in
        conjunction with Carol Goldman and two or three others?
   A.   I think that is right, but I have to say I am not very

.          P-104

        familiar with this bibliography.
   Q.   If I tell you, therefore, that my name does not figure in
        this entire bibliography as having published a Holocaust
        Denial work, would this surprise you in the view of the
        expert report that you have written?  Is that a proper
        question, my Lord?
   A.   Well, I did not compile the bibliography.  I am not
        answerable for what they think or they do not think.
        I reached my own conclusions about this in my report.
   MR IRVING:  You accept that he is Professor John Drobniski,
        Assistant Professor and Reference Librarian at York
        College in the City University of New York?
   A.   If you say he is, yes, I accept that.
   Q.   And that his bibliography contains many thousands of
        entries of books, journals, learned papers and articles?
   A.   Well, I do not really want to speculate about it, but you
        have yourself said that the Holocaust has always been a
        rather peripheral element in what you have written
        yourself, so in a way, it would not be surprising if
        somebody wanted to draw up a bibliography of works to
        which Holocaust Denial was central.
   Q.   Yet I am the one who is pilloried in the book by the
        Second Defendant and published by the first Defendants in
        this case, and Yehuda Bauer, as we know from the document
        which is before the court, specifically requested the

.          P-105

        second Defendant to ensure that I was included because
        I was particularly dangerous?
   A.   Well, it is my impression, having read the second
        Defendant's book very carefully, that you figure only
        relatively peripherally in that, too, and it does not
        devote a great deal of space to you in your work.
   Q.   I think, my Lord, that if we may take the lunch
        adjournment very shortly, then I will come back this
        afternoon and we will go as far as your Lordship permits
        through the bundle of documents which is known to your
        Lordship as Global.
   MR JUSTICE GRAY:  Do you want to consider how much you can go
        into, because I have not looked through bundle E yet, but
        I am conscious we have not really made a huge amount of
        progress this morning so far.
   MR IRVING:  Well, I have been stopped in my tracks dead by the
        delivery last night of these 200 pages of answers.
   MR JUSTICE GRAY:  If that is so, I am not sure that is a
        complete explanation, but if that is so, well so be it.
        What are you proposing to do with the rest of bundle E,
        that is really the point?
   MR IRVING:  To step through it, picking out key documents to
        indicate and to ask his opinion as to whether this does
        not indicate that there has been a concerted endeavour to
        suppress my rights to publish and to write, to research
        and to lecture.

.          P-106

   MR JUSTICE GRAY:  By the one or other of the Defendants?
   MR IRVING:  By one or other of the Defendant and in the light
        of his own expert knowledge.
   MR JUSTICE GRAY:  Do not worry about the latter bit.
   MR RAMPTON:  I really do have a reservation about this.  It is
        not my place to make comments about the latitude that your
        Lordship has so far given, Mr Irving.  I have a place,
        however, to say something if I see the afternoon wasted
        away with this witness, who is a professional historian,
        being asked questions about what hand the Defendant might
        or might not have had in the international Jewish
        conspiracy to shut Mr Irving up.  That is not something
        that Professor Evans has written about.  So, for all
        I know, he knows nothing about it.  If there is one
        question:  "Do you know anything about it"?, and he is
        allowed to answer it now and he says, "No", then that is
        the end of the matter.
   MR JUSTICE GRAY:  Leave aside whether it is right for Professor
        Evans to be asked questions about this because that,
        I agree, is something that we have to tackle, but just
        supposing for the sake of argument that it is right, that
        one of the Defendants has been trying, in some way, to
        sabotage Mr Irving, it does not matter in what way, can
        you say that is wholly irrelevant?
   MR RAMPTON:  No, I did not say that.  I said that it is not a
        proper matter for the cross-examination of this witness.

.          P-107

   MR JUSTICE GRAY:  You see, I am anxious, and Mr Irving is
        anxious obviously, that he should not be, as it were, shut
        out from making this point.  I think the best way of
        dealing with it is to let him make it as a matter of
        submission by reference to the documents in bundle E.
   MR RAMPTON:  Of course I agree with that.  It is only relevant,
        of course, if we should lose the action.
   MR JUSTICE GRAY:  Of course, but it is relevant.
   MR RAMPTON:  Just as a matter of hypothesis we did, then it
        would be relevant quite likely, some way of wounding or
        something, I do not know.  I have not really thought about
        it.  The right thing for him to have done, but he did not
        do it, was to give evidence about it in-chief and then
        make submissions about at the end of the case by reference
        to the document.
   MR JUSTICE GRAY:  I would be inclined to let him give further
   MR RAMPTON:  I am not going to insist on it.
   MR JUSTICE GRAY:  If that is the right way.  It can be done as
        a matter of submission, as far as I am concerned.
   MR RAMPTON:  Equally, as far as I am concerned.
   MR IRVING: My Lord, the argument against that ----
   MR JUSTICE GRAY:  What do you say about that?
   MR IRVING:  Although I hear what Mr Rampton says about I should
        have done it as evidence-in-chief, but your Lordship will
        remember clearly that we were only informed two days ago

.          P-108

        that they were not going to call Professor Levin or
        Professor Eatwell.
   MR JUSTICE GRAY:  That is not, if I may say so, an answer to
        the point that has just been made.  You do not know your
        way around the law, perhaps, as well as some, but the
        answer is that this evidence all goes to damage and the
        only person, or broadly speaking the only person who can
        give evidence about damage, is the Claimant, yourself.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  So it is really a matter for your own
        evidence.  I do not think it is a helpful use of the
        court's time, or indeed Professor Evans's time, to take
        him through a whole lot of documents which he would
        probably not really be able to make much of anyway, when
        really it is for you to make the points you want to make
        in your evidence, and Mr Rampton is not contesting your
        entitlement to add to the evidence you have already given,
        so I think that is a better way of dealing with it.
   MR IRVING:  Very well.  Shall I do that this afternoon then.
   MR JUSTICE GRAY:    You would rather break off now? I am easy
        about that.
   MR IRVING:  I think it would make it an appropriate place to
        break off now.

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