Archive/File: people/i/irving.david/libel.suit/transcripts/day027.01 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, 29th February 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 TWENTY-SEVEN . P-1 (10.30 a.m.) MR RAMPTON: I think Mr Irving has something to say, my Lord. MR JUSTICE GRAY: Yes, Mr Irving? MR IRVING: My Lord, I understand that today I am going to be cross-examining Professor Funke, which is after he has been presented to the court. There are two things I want to mention first. First of all, I understand from today's Israeli newspapers and yesterday's Washington Post that the Defence now have the Eichmann papers. In other words, they are going to bring in the Battleship Eichmann in a frantic attempt to rescue their position. I would be very grateful if I had the chance to read them as early as possible rather than just being presented with them piecemeal. MR RAMPTON: Yes, of course. We have not read them yet. If they contain relevant material, those relevant parts will be disclosed at once. MR JUSTICE GRAY: Is that enough? MR IRVING: My Lord, do they not now become discoverable now that they are in their custody? MR RAMPTON: No, not unless they are relevant. MR JUSTICE GRAY: I do not know quite what we are talking about is it a diary? MR RAMPTON: I do not know. I have not seen it. It has come on e-mail. It is about 600 pages of memoirs. That is all I know. If they contain relevant material, then the . P-2 relevant material, plus context of course, will be disclosed. MR JUSTICE GRAY: That is a slightly unconventional approach, is it not? Normally, it would be a document which would be discoverable if it contained any relevant material. You would not normally redact the non-relevant material. MR RAMPTON: You are allowed to redact that is the case of Guardian v. GRE. MR JUSTICE GRAY: Only for good reasons, in my recollection. MR RAMPTON: No, if it is irrelevant. I do not really mind as it is in the public domain anyway. MR JUSTICE GRAY: Is it? MR RAMPTON: Yes. It will be from tomorrow morning. The Israeli government are going to release it to the public at large, so I do not really mind. But I do not want to lumber the proceedings with a great fat document if it does not contain anything relevant. MR JUSTICE GRAY: Nor do I. It just seems to me, in terms of what Mr Irving should see, he probably ought to see for himself and judge for himself. MR RAMPTON: Yes. It is not a problem. It is just that we have not looked at it ourselves yet. It is not even in readable form at the moment. MR JUSTICE GRAY: It may feature in your cross-examination of Mr Irving, I suppose. MR RAMPTON: It may well do. I will know by the end of the day . P-3 whether it will, and he will immediately get a copy. MR JUSTICE GRAY: He ought to have the copy by close of business today really, ought he not? MR RAMPTON: I agree. MR JUSTICE GRAY: Good. Thank you. So that deals with that. MR IRVING: My Lord, inform me, please. Is it not automatically discoverable now that it is within their custody, possession and power? MR JUSTICE GRAY: You are going to get it. MR IRVING: Just so it can be quite plain, the whole document rather than a redacted version. MR RAMPTON: No. I made a mistake. I thought it had come through in e-mail and has been put into readable form. Apparently not even that has happened yet. There is something the matter with the electronics. MR IRVING: I recommend Macintosh. MR RAMPTON: I do not know what the problem is because I am completely ignorant on those matters, so I have to surrender to others. MR JUSTICE GRAY: Mr Irving, the order I am making, unless I am told that it is electronically impossible to comply with it, is that you should be provided with a copy. MR IRVING: In electronic form if necessary. MR JUSTICE GRAY: In electronic form if necessary, of the Eichmann document by close of business, by which I mean, let us say, 5 p.m. today. . P-4 MR IRVING: I am indebted to your Lordship. The second point concerns the videos. I see that preparation has been made for display of videos. I have no notion of which video is going to be shown. It may well be that I would have objections to make to the videos for the reasons that I have already adumbrated to your Lordship, namely videos that have been edited in some way or prepared for broadcasting with sound effects and violins and subtitles, which may have been tendentiously translated, and the rest of it. I see the equipment is there. I certainly have a day of cross-examination of Professor Funke to do today and I think that I should be told in advance what the videos are and be given a chance to make representations. MR JUSTICE GRAY: I have some sympathy with that. MR RAMPTON: What I propose to do is to ask Professor Funke to lay the ground for these videos, because I do not think it is right to spring them on Mr Irving or your Lordship just like that, by asking him. Your Lordship will know that at the back of his report there is an appendix containing a list of names and descriptions. I am going to ask him to go through the important characters in that list, to expand on who they are and what they stand for, then to ask him how far he is aware that those people have had contact with Mr Irving, because Professor Funke has had access to Mr Irving's diary correspondence and so on, and to ask him the nature of those contacts speaking to . P-5 us, for example, and the extent of them. That I hope is a short cut through what is a very voluminous and in some senses rather intricate report. Then I propose to show the videos which, as far as possible, we have stripped of editorial content. Most of them simply show people speaking, including, to a large extent, Mr Irving himself on a number ---- MR JUSTICE GRAY: Well, I am not a jury and I am quite capable, I hope, sorting out the wheat from the chaff. MR RAMPTON: Precisely -- on a limited number of occasions in Germany in the 1990s. What Professor Funke will do is to identify Mr Irving's fellow travellers, if I can call them that. MR JUSTICE GRAY: Will he also identify in advance what film is going to be shown so that, if Mr Irving has an objection, he can make it. MR RAMPTON: He or I or Miss Rogers will do that. MR JUSTICE GRAY: How long is the video going to take? MR RAMPTON: They can be very short. One of them is really quite long, but I do not believe it needs to have the whole of it shown. Most of them are really quite short. One is about 10 seconds. MR JUSTICE GRAY: The total? MR RAMPTON: Total about an hour. MR RAMPTON: The long one I spoke of is about 70 minutes, but there is an awful lot of, if I may use the word, ranting, . P-6 not by Mr Irving alone, in the course of that video and one does not want to see the whole of it, necessarily. One merely needs to whiz forwards so that Professor Funke can say who the people are. That is 70 minutes but one does not need to watch the whole of it. The rest in total are about 45 minutes. If I said an hour for the videos and about three quarters of an hour in preparation, that will then set the scene for cross-examination. MR IRVING: My Lord, if it is purely, as I understand it, what Muller would have called visual materials, then I have no objection to them being shown. But if in any attention is paid to the content of what is alleged to be said, or the extracts taken, then of course I would want advance notice of them. MR JUSTICE GRAY: Let us leave it like this. You are going to get some idea from Mr Funke's evidence what these clips are going to be. If you want to raise an objection when you know what you are going to be presented with, then do so. Shall we leave it like that? MR RAMPTON: I will tell Mr Irving now what the meetings are. There is one on at Agonou in Azas on 12th November 1989 organised by Mr Christophersen. There is a meeting in Munich under the legend or heading "Vaheit macht Frey" on 21st April 1990. There is a meeting at Passau under the aegis of the DVU and Mr Gerhard Frey on 16th February 1991. There is what is called the Leuchter Congress, . P-7 which is the long tape, on 23rd March 1991, again in Munich, and that is one in which a number of names which will be familiar to your Lordship, if not now, certainly by end of this exercise, feature. Then finally there is what is, in some ways we would suppose, perhaps the most striking, which is an outdoor rally in a place called Halle in what used to be East Germany but by 9th November 1991 was in the reunited Germany. MR JUSTICE GRAY: That is very helpful. Thank you very much. MR IRVING: I think I will only have problems with the Halle one because that particular piece of film has been very heavily chopped around, cutting out very important parts of what I said. So, as I said before, if this is purely a rogues gallery, I have no objection to the court being shown it at this stage. MR JUSTICE GRAY: Have we got a transcript of what you said at Halle? MR IRVING: We have made a transcript of as much as is on the film as far as we possibly can. MR JUSTICE GRAY: Just what is on the film? That is your point. MR RAMPTON: I have not got that. MR IRVING: It has been on my website for the last year. MR RAMPTON: That is a peculiar way of making disclosure. Oh, it is not. MR JUSTICE GRAY: It has probably been disclosed as well. . P-8 Anyway, that is the one you may be objecting to? MR IRVING: Purely to the text of the film rather than the rogues gallery pictures of these alleged sleezy friends of mine. MR JUSTICE GRAY: Right. MR RAMPTON: Now the Professor needs to be sworn. < Professor Funke, affirmed. < Examined by Mr Rampton QC MR JUSTICE GRAY: Herr Funke, do sit down. MR RAMPTON: Professor Funke, have you made a report for the purposes of this case? A. Yes, I did. Q. So far as it contains statements of fact, are you satisfied that they are as true as they can be? A. I think so. Q. And, so far as they contain expressions of opinion, are you satisfied that those opinions are fair? A. I think so.
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