Archive/File: people/i/irving.david/libel.suit/transcripts/day029.01
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
                                      Thursday, 2nd March 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-NINE



.          P-1



   (10.30 a.m.)

   MR JUSTICE GRAY:  Mr Rampton and Mr Irving, before we start
        today, I wonder if I can hand to you now a list of issues?
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  I think I did mention earlier that it might
        be helpful -- it is up to both of you -- if we could
        perhaps take the issues in more or less the order in which
        I have set them out, if that is not inconvenient?  I also
        want to make sure that I have got everything in that
        I need to cover, and that I have not included things that
        really are no longer live issues.  Do not take time with
        it now.
   MR RAMPTON:  No, I will not.  There is one item in (i) of four
        which is still to come today from Evans, which will need
        to be added.
   MR JUSTICE GRAY:  Yes.  It is just that either at a later stage
        today, or perhaps tomorrow, it might be worth spending a
        few minutes just going through that.
   MR RAMPTON:  I do not think I will finish my cross-examination
        today.
   MR IRVING:  That is very useful, my Lord.  There are four or
        five minor points that I wish to raise before Mr Rampton resumes.
   MR JUSTICE GRAY:  Yes.
   MR IRVING:  The first point is that I have repeatedly asked the

.          P-2



        Defence to provide me with the speeches, the transcripts
        on disk, most recently about 10 days ago by letter.  It
        would obviously assist me in responding to and rebutting
        these juicy morsels that they are tossed out of their cage
        into the courtroom, like yesterday.  If I had such a thing
        on disk, and I am entitled to it of course under the
        rules, once the documents have been pleaded, I am entitled
        to have them in digital form.  There is no reason for this
        delay other than a deliberate and wilful attempt to impede
        my response.
   MR JUSTICE GRAY:  So that I am clear what you are asking for,
        is it a disk containing the speeches that you have made
        that the Defendants rely on?
   MR IRVING:  No, it is a disk containing the transcripts.  They
        are put into court by way of their pleadings in evidence.
        Obviously it exists in digital form.  It is no great
        burden on them.  It is five minutes work to do, just
        pressing one button.  They could have done this 10 days
        ago, if not, indeed, when I first asked for them.
   MR JUSTICE GRAY:  It does not sound an unreasonable request.
   MR RAMPTON:  I have no idea.  I do not deal in disks, I am
        afraid.  I deal in paper.  I will pass on that request.
        I am surprised it has not been responded to.  If it is
        anybody's fault, I apologise for it on their behalf.  If
        these transcripts -- and I think Mr Irving means the
        transcripts that are in the K files ----

.          P-3



   MR IRVING:  Yes.
   MR JUSTICE GRAY:   Yes, which is racism, anti-Semitism, or
        allegedly so.
   MR RAMPTON: --  which are mostly his own words. If they are on
        a disk, which I imagine they must be, then by all means,
        if it is easier.
   MR JUSTICE GRAY:  I think I know they are on disk because I am
        not -- well, anyway, if it can be done, it should be done
        soon because Mr Irving needs it.
   MR RAMPTON:  If it is possible, it should be done before the weekend.
   MR JUSTICE GRAY:  Before the weekend, I agree, yes.
   MR IRVING:  A not unrelated matter is that the Defence
        solicitors are still sitting on a number of my microfilms
        and papers.  They keep promising to return them.  When
        they returned my previous boxes of papers, they returned
        them in a totally disheveled state, which has not assisted me ----
   MR JUSTICE GRAY:  That is something I do not really want to get
        into now.  Raise that, but perhaps at a later stage.
   MR IRVING:  The third point, my Lord, is the Eichmann
        manuscripts.  I gave the undertaking which your Lordship
        very properly required.  The manuscript has now been
        placed in the public domain.  It is on, for example, the
        website of Der Spiegel and elsewhere.  I would ask that
        the undertaking which I gave should now be rescinded or

.          P-4



        annulled, if Mr Rampton has no objection, in order that I
        am not----
   MR JUSTICE GRAY:  I suspect he may not really know the score on that.
   MR RAMPTON:  I do not know the score.  I am told that that
        version, which is the electronic version, that came to us
        from the Israeli Government cannot be used for any purpose
        but this trial.  If it is on some website or other, then
        perhaps we can have our disk back so we can give it back
        to the Israeli Government, and people can use the public
        domain copy.
   MR JUSTICE GRAY:  Well ...
   MR IRVING:  Without wanting to compare the public domain
        version word for word with the version given to me, I see
        that it has been published in the Guardian yesterday, for example.
   MR JUSTICE GRAY:  I have seen reports which make it appear that
        you may be right.
   MR IRVING:  Having given the undertaking ----
   MR JUSTICE GRAY:  What I am not in a position to judge is
        whether the whole of it is in now in the public domain.
        If the whole of it is, then it seems to me that you should
        be released from your, undertaking, but I am not going to
        release you now.  I do not think this is really in a way
        Mr Rampton's problem.
   MR RAMPTON:  My problem is that I am merely the conduit pipe

.          P-5



        for this material.  I gave my own personal undertaking in
        order to get the material released; I do not really feel I
        can break it.
   MR JUSTICE GRAY:  To save time, what I am inclined to say is
        this.  It does appear to me that there is good reason for
        supposing that it is in the public domain.  If that be
        right, I do not see it is realistic to maintain the
        undertaking.  I am therefore inclined to think it should
        be lifted, but I would like to give an opportunity to
        whoever it may be to make representations, whether through
        you or in some other way.
   MR IRVING:  I do not want to be held in contempt.
   MR JUSTICE GRAY:  Of course you do not, but the undertaking
        will stay until tomorrow morning.  If somebody tomorrow
        morning wants to say that the undertaking should remain in
        place, I will hear argument then.
   MR IRVING:  My Lord, tomorrow is Friday.
   MR JUSTICE GRAY:  I know, but I suspect your cross-examination
        is going to continue until tomorrow.
   MR RAMPTON:  I do not know that there is going to be any
        difficulty at all.  The only difficulty I can see, and it
        is mere conjecture, is that there may be parts of the
        electronic version which has been given to Mr Irving for
        the purposes of this case and no other purpose.  There may
        be parts of that which are not in the copy which has been released.

.          P-6



   MR JUSTICE GRAY:  That may be.
   MR RAMPTON: -- in which case I would have to maintain my
        position so far as those other parts are concerned.
   MR JUSTICE GRAY:  I am bound to say I am not sure that
        I understand why the Eichmann diaries are relevant
        because, if they were not, and they by definition were
        not, available to Mr Irving, I am not sure how they can be
        used by way of criticism.
   MR RAMPTON:  I may say I rather agree with that.  It is not my
        intention contention today at any rate to make any
        reference to them in this court.  The fact is they do
        contain, as anybody can see if they read the public
        report, some statements made in 1960 something which, if
        reliable, demolish Holocaust denial really at one fell
        swoop, but so what.
   MR JUSTICE GRAY:  I can see that there is a way in which they
        could be capable of being used in this trial, but I will
        leave you to take whatever course you think is right.
   MR RAMPTON:  My present inclination, I am not saying it is the
        final inclination, is that this is something for the
        historians to argue about, rather than the lawyers in this
        court, but I will reserve my position for the present at
        least, if I may.  I do not know, Mr Irving may have
        further things?
   MR JUSTICE GRAY:  I think there is one other point.
   MR IRVING:  There are two other points, my Lord.  One is the

.          P-7



        video of the Halle meeting on 9th November 1991.  I wish
        to make submissions to your Lordship next week about the
        admissibility of that video, because it was the subject of
        a bitter dispute between myself and the instructing
        solicitors for the Defendants.  It was a matter of
        withheld discovery, fraudulently withheld discovery.  In
        fact, I was reminded of this by the OSS this morning.
        I put a complaint into the OSS over undertakings broken by
        the solicitors, and so on.
   MR JUSTICE GRAY:  Who are the OSS?
   MR IRVING:  Offices for the Supervision of Solicitors in
        Leamington Spa; a rather toothless body which watches over
        malfunctions by solicitors.  So I would like permission to
        make a submission about the admissibility of the video as such.
   MR JUSTICE GRAY:  Yes.  Do that when you like.  In some ways it
        ought to be perhaps done sooner rather than later.
   MR IRVING:  I had prepared a little bundle on this many, many
        weeks ago and I was just reminded of this actual matter
        this morning by this phone call from the OSS.
                  The final matter is the little bundle I put
        before your Lordship headed "Documents on Mr Irving's 1991
        arrest".
   MR JUSTICE GRAY:  Yes.
   MR IRVING:  This is the Lowenbraukeller meeting.  It is a
        matter of my truthfulness, whether I am right or whether

.          P-8



        the Defence submissions are correct, namely that I was a
        participant in an illegal demonstration or not.  These are
        three or four documents on the police file which contain
        the statement that was made at the time of arrest and so
        on, which I have summarised in the two-page translation at
        this beginning.  Either your Lordship can say now that you
        attach no importance to the issue of the submissions made
        yesterday as to whether I was telling the truth or not.
        It bulked quite large in the cross-examination but your
        Lordship may very well say you attach no importance to it.
        If your Lordship does attach importance to it, then
        I would ask permission to put these documents to Professor
        Funke, who is in the court this morning.
   MR JUSTICE GRAY:  I do not think it matters a row of beans
        whether it was an illegal demonstration, or whether it was not.
   MR IRVING:  I agree, my Lord.
   MR JUSTICE GRAY: The relevance, as it appears to me ----
   MR IRVING:  The question is my truthfulness.
   MR JUSTICE GRAY:  -- is simply whether you did either
        participate in, or in some other way associate yourself
        with, the demonstration that one sees on the video.

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