Archive/File: people/i/irving.david/libel.suit/transcripts/day030.03 Last-Modified: 2000/07/25 MR JUSTICE GRAY: No. I think I had misunderstood the position as to the editing, but can you just help me about this? I am not sure that I know what or, indeed, need to know at this stage what the argument was, but you, you the Defendants, had in your possession a copy of these videos from when, from day one, as it were, or? MR JULIUS: No, my Lord. What happened was this. During the course of preparing the case for the trial, a huge amount of material, as your Lordship can imagine, was being generated. It was being generated within the firm, it was also coming in from third parties. Lists were being drawn up on a periodic basis to send the material over to Claimant. This came in, I understand, after the last list was produced and at the time the view that was taken of it was that it was material generated for the purposes of litigation and, therefore, on the face of it, privileged. MR JUSTICE GRAY: Privileged? How could it possibly be privileged? MR JULIUS: Well, this was the preliminary view that was taken. In the event, it is not privileged. In so far as privilege was ever claimed for it, the privilege was waived. It is plainly a video that is important to the case, relevant to the issues and disclosable to the Claimant. It was disclosed to him and he has had it for . P-17 a year now. He was keen to have it, and it is slightly odd that he should now be keen to exclude it. MR JUSTICE GRAY: Can I just ask one more question? For how long was the claim for privilege maintained, as it were? MR JULIUS: I think two days, my Lord. MR JUSTICE GRAY: Right. Well, as is obvious from what I have already said, I am satisfied that it is admissible, this tape, but I leave it open to both parties to make whatever comments they think it necessary or appropriate to make about the use that has been made of it in the short period when it was not disclosed on the basis it was privileged, and so on. Mr Irving, is that reasonably clear? MR IRVING: Very clear indeed, my Lord, yes. MR JUSTICE GRAY: What does that leave? You have some comments to make about the opening, the list of issues? MR IRVING: I think both Mr Rampton and I have a few, I certainly have very few comments to make on your Lordship's list. I am going to use the list as a North Star by which I shall steer in my closing statement. MR JUSTICE GRAY: That is really what it was intended to do. MR IRVING: Because, obviously, the onus is on the Defence to justify ---- MR JUSTICE GRAY: Of course. MR IRVING: --- and they have to justify seriatim, whereas I shall reserve to myself the right to pick out major points which I consider would justify my conduct. . P-18 MR JUSTICE GRAY: Yes. One thing that I think is perhaps missing from this, and it is not missing because I did not have it in mind, it is just that it did not strike me as perhaps worth including a separate little heading for, but I mention it because you will want to place reliance on it, I have no doubt. MR IRVING: I am sure. MR JUSTICE GRAY: That there are many assertions in ---- MR IRVING: Section 5. MR JUSTICE GRAY: --- Professor Lipstadt's book which have not sought to be substantiated. MR IRVING: Section 5, my Lord, yes, the Hisbollah and Hammas ---- MR JUSTICE GRAY: You say section 5. That is perhaps a slightly defensive way of looking at it, but that is something that also needs to be addressed as a topic. MR IRVING: That was precisely the one point I was about to make, my Lord, that I was unaware whether this was a deliberate omission that you thought was unnecessary even to tell me that because ---- MR JUSTICE GRAY: No, I think the reason for it, if there needs to be a reason, is that I was focusing entirely on the way the plea of justification is put. That does not, of course, mean that I do not have to have in mind what was published and what has not been sought to be justified. MR IRVING: That was, in fact, the only detailed point that . P-19 I wished to make about it, my Lord. MR JUSTICE GRAY: I have one other observation which is probably sensible I should make whilst you are on your feet, and it relates to the, and it is my word, well, I think it is the Defendants' word but I picked it up in (ix) -- I do not know why it has become "P" but anyway -- the Claimant's honesty as an historian. I think that is a slightly unsatisfactory gloss to put on what I understand the Defendants' case to be, and I did not want you to be misled by the fact that I have used that label. It seems to me that it begs too many questions to be helpful. The allegation sought to be justified, and the meaning which it is accepted, I think, was borne by the words that Professor Lipstadt used, was that you were deliberating distorting the data, etc., etc., etc. ---- MR IRVING: Precisely. MR JUSTICE GRAY: --- because you have an agenda of your own. Well, I can see that that might in some ways be described as dishonest conduct on the part of an historian, but I just thought I ought to make clear that I am not very happy with that word "honesty" used without a clear explanation of what in the context of this case it actually means. MR IRVING: My Lord, I had clearly apprehend exactly what your Lordship intends with that word. It is a manipulation, deliberate false translation and distortion. . P-20 MR JUSTICE GRAY: I think I will avoid it because I think it begs too many questions, as I say. So that is all you have, is it, on the ---- MR IRVING: No, my Lord, but I do know that Mr Rampton has a number of points that he wishes to make. MR JUSTICE GRAY: Yes, I know he does and he has very helpfully, as you know, made some amendments to my list. MR IRVING: Which I wholeheartedly endorse. MR JUSTICE GRAY: On the whole, I think I do too. MR RAMPTON: I am grateful for that. If your Lordship wanted a one word substitution for "honesty", it might be "integrity", "integrity as an historian". No, I prefer a longer version. MR JUSTICE GRAY: I think it is better and I am not saying this tendentiously in either way. MR RAMPTON: No, I realise that. It was perhaps too narrow as it stood and perhaps "integrity" as well is too narrow for what we are talking about or we think we are talking about, but we know what comes in under this heading which already will have been dealt with as we have been through the historical distortions, if I can call them that. My Lord, there is one typographical error in 5.1(e) in the bit which we added, "Hitler's views on the Jewish question during the war, including Goebbels' diaries entries", it should be the 22nd not the ---- MR JUSTICE GRAY: I have the 21st actually. I have just . P-21 spotted that that was not right. I suspect the reason is it is a diary entry for the following day, I do not know. MR RAMPTON: That is right. Something went wrong there. Yes, and I do have the German of that which goes in bundle N at pages 127 and 127B. The English is already there, thanks to Professor Evans. But the German somehow got missed out. The relevant passage ---- MR JUSTICE GRAY: This is N? MR RAMPTON: Yes, that is N, N1. I do not think N has any children yet, has it? MR JUSTICE GRAY: Yes, it has. E is the most difficult one because ---- MR IRVING: It is very exclusive, is it not? It excludes a lot of the entries that I would have relied upon. MR JUSTICE GRAY: Well, yes, it is exclusive and at the same time it is inclusive. I had not realized it is spread as wide as this, at any rate in the context of the historiographical criticisms. MR RAMPTON: It does, and there are very, very grave criticisms to be made of Mr Irving in relation to each of those items in the bracket, and they all relate to the way in which, according to our case, he has tried to suppress, mollify or distort Hitler's expressions of his anti-Semitism during the war, particularly during the later part of 1941 and the early part of 1942. MR JUSTICE GRAY: Yes, I can see how they come in now. . P-22 MR RAMPTON: Those are inclusive rather than exhaustive. MR JUSTICE GRAY: Yes. I mean the problem I have with them is that they come in elsewhere too. MR RAMPTON: I know they do. There is bound to be some repetition. That is inevitable. MR JUSTICE GRAY: I know. Can I ask you what the significance is, I think I do understand, of adding decrypts to whatever it is, 3B? MR RAMPTON: Yes, that is simply because Mr Irving relies on two pieces of evidence, if I can call it that, for the suggestion that the number killed or died at Auschwitz was really quite low. One is the death books which were released by Moscow sometime in recent years, and the other thing is the Hinsley decrypts do not make any reference gassings at Birkenhau. MR JUSTICE GRAY: Yes. MR RAMPTON: So they really go together, and our explanation for that is that really they are the same in both cases or similar anyway. MR JUSTICE GRAY: Yes. As I say, I am inclined to add, if we are making this as complete as it is becoming, two further topics at the end, which is the conclusion as to substantial truth and the availability, if required, of section 5, and then lastly damages, if any, injunction. If any. MR RAMPTON: Would your Lordship be wanting then to transfer . P-23 some particularity out of 4 on the first page? MR JUSTICE GRAY: No, because that is conclusions as to the law that applies, is it not, rather than conclusions? MR RAMPTON: So 11 would be facts arising out of 4, would it not, or something like that? MR JUSTICE GRAY: Yes. MR RAMPTON: The facts governed by the principles in 4? MR JUSTICE GRAY: Yes. Good. If in the course of preparing final speeches either of you come across topics that should be there but still are not, perhaps you could let me know by fax? MR RAMPTON: We certainly will. That brings me to what to us is a matter of, to say some concern sounds over-dramatic, but it is this. I do not want and do not propose to ask your Lordship for permission to stand here for three days speaking. That would not be interesting for anybody and it would not be a good use of the court's time. However, this is a case of some peculiar importance, we would submit, and it has a legitimate interest for the public which runs far beyond the particular interests of the parties, and I do concede that it is the sort of case in which it would be appropriate, with your Lordship's permission, for both sides to be allowed to make a somewhat longer, but still not very long, longer closing statement than they made in opening. In my case, it would not necessarily follow the same structure as this, the . P-24 long version, but it would certainly reflect the material within it. There are two next questions. First, when does your Lordship believe that that should happen, because again the public needs to know when it is going to happen? As a corollary of that, whether there is any possibility of accommodating rather more people in this court than are presently able to get in?
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