Archive/File: people/i/irving.david/libel.suit/transcripts/day009.01 Last-Modified: 2000/07/20 IN THE HIGH COURT OF JUSTICE 1996 I. No. 113 QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London Tuesday, 25th January 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 NINE . P-1 (Day 9 Tuesday, 25th January 2000.) MR JUSTICE GRAY: Mr Irving, I have your clip which I obviously have not had time to read. Before we get into that, shall we, as proposed, just look ahead and consider what is going to be happening? We are going to have Professor van Pelt today, is that right? MR RAMPTON: Yes, my Lord, that right. MR IRVING: Yes. MR JUSTICE GRAY: So that the transcript is clear, that is him being interposed in order to be called by the Defendants and cross-examined because he has commitments elsewhere. Is it expected he will be finished in a day? MR IRVING: I doubt it, my Lord. I think two days. MR JUSTICE GRAY: Right. So when will he resume? He cannot be here tomorrow, Mr Rampton, can he? MR RAMPTON: He can tomorrow but not Thursday. MR JUSTICE GRAY: So we should get rid of him. MR RAMPTON: If he can be done in two days, so much the better; if he cannot, he can come back on Friday. MR JUSTICE GRAY: We have to keep within reasonable bounds so I hope he will be finished within two days. MR RAMPTON: Mr Irving's original estimate for him was three days. We asked what the estimate was. But, if it is two days, so much the better. If we have Friday a blank, as it were, then I shall continue cross-examining Mr Irving on Friday, I suppose. . P-2 MR JUSTICE GRAY: Yes. MR RAMPTON: Then on Monday, Professor McDonald, and I do not know about Dr Fox, it may be him too. I do not know. That is in Mr Irving's hands. MR JUSTICE GRAY: I cannot remember who Professor McDonald is. MR IRVING: My expert witness. MR RAMPTON: He is a social scientist, I think. MR JUSTICE GRAY: How long is he going to be, just so that you are communicating about timing? MR IRVING: I shall be submitting various documents to him with your Lordship's permission, my Lord, and it depends on whether Mr Rampton wishes to cross-examine him or not. MR JUSTICE GRAY: He may not know the answer to that until he knows in more detail what he is going to say. MR RAMPTON: I have a pretty good idea what he is going to say. The answer is if I cross-examine him at all, it will be quite shortly, I expect. MR JUSTICE GRAY: And then Fox? MR RAMPTON: I do not know about Mr Fox. That is Mr Irving's witness. MR IRVING: I expect Dr Fox will be half a day, my Lord, if that. MR JUSTICE GRAY: Right. MR RAMPTON: Then, my Lord, I hope I will be able to complete any outstanding issues arising out of Evans and the political scientists in the remainder of the four days of . P-3 that week. MR JUSTICE GRAY: Yes. MR RAMPTON: I would be disappointed if I do not. I would hope I would be quicker than that. MR JUSTICE GRAY: I think I would too. I think you have been through the most -- if I can use the word "laborious" without giving offence -- laborious bit. MR RAMPTON: No, not laborious, perhaps the most important issues anyway. MR JUSTICE GRAY: Distorting history on Hitler. MR RAMPTON: Distorting Hitler and Holocaust denial by means of Auschwitz denial. MR JUSTICE GRAY: So at the end of those four days, will that complete your cross-examination? MR RAMPTON: Yes, it should do. As your Lordship knows, Reichskristallnacht is a bit fiddly. MR JUSTICE GRAY: It is quite convoluted. MR RAMPTON: It is convoluted, exactly, so it may take a bit of time. Then, my Lord, we are now being speculative, in a sense, provisional, we would hope to start our evidence, excluding Professor van Pelt, on Monday, whatever it is of February, with possibly Professor Browning, possibly Dr Longerich, possibly Professor Evans, I do not know. Then I think perhaps the only political scientists we will call as a witness is Fulkhan, the German. But that is a little bit in the future. . P-4 I have put question marks against Levin and Eatwell and also against the Russian witness Tarasov because, quite frankly, having regard to the witness statement of Mr Irving's witness, the journalist, Peter Miller, I do not think Mr Tarasov has anything to add at all. MR JUSTICE GRAY: I will say again that I think in relation to the Moscow diaries some sort of accommodation might be possible. MR IRVING: My Lord, I do wish to make certain fundamental observations about the way the case is being conducted so far. I do not know if this is the appropriate moment. MR JUSTICE GRAY: I think now is probably the moment for you to do that, unless you would rather reserve it for later? MR IRVING: It is brief but to the point, my Lord. I am the Claimant in this action. This is my action, and I spent yesterday evening indulging in a little bit of light reading in the Civil Procedure Rules and my eye alighted on Lord Woolf's wise words towards the beginning of the introduction to the Rules which states that all steps have to be taken to ensure complete equity between the parties. MR JUSTICE GRAY: Of course. That is my major function. MR IRVING: It is a major departure from the old system. He said, he identified a range of defects in the existing civil justice system, the third of which was that it was too unequal in that there was a lack of equality between . P-5 the powerful, wealthy litigant and the under-resourced litigant. My Lord, I am up against a powerful, wealthy litigant here, as evidenced by the fact that I stand here alone and on the other side of your Lordship's court are sometimes between 20 and 40 experts, researchers, solicitors, learned counsel, arrayed against me ---- MR JUSTICE GRAY: That had not escaped my notice. MR IRVING: --- funded by the most enormous resources. Somehow, the sequence of events has got reversed. Your Lordship will remember that when we embarked on this two and a half weeks ago, we were looking at the prospect of holding off Auschwitz until towards the end of the discussions, but now Auschwitz has somehow come right up in front. Their witnesses have been interspersed in the middle of my presentation of the case. It now turns out that Professor Robert Jan van Pelt is here at this time purely because it is convenient to him because he is going on a Holocaust junket to Stockholm on Thursday together with the Second Defendant. I do not see why I should be inconvenienced in this way, my Lord. I do not, frankly, understand why your Lordship is tolerating it. MR JUSTICE GRAY: Partly, Mr Irving, because you have not until now raised any objection. We have been discussing for some days now when Dr Van Pelt might give his evidence. . P-6 I had understood (and I will be corrected by reference to the transcript if I am wrong about this) that you had not raised any objection and, indeed, I had understood you to concur with his being interposed at this stage. MR IRVING: But the inevitable result is, my Lord, that this means that Auschwitz has been brought right to the front of this case purely for the convenience of one of the witnesses who intends to fly to Stockholm on this lavish junket Thursday for which the whole court is having to hold its breath for a day. MR JUSTICE GRAY: I am a bit puzzled, Mr Irving, about this protest because you were cross-examined for the whole of yesterday about Auschwitz, so there is no question of Auschwitz having suddenly being brought to the forefront of the case. It was brought to the forefront of the case when cross-examination was embarked on yesterday morning. MR IRVING: The inevitable result, of course, has been that it has driven a cart and horses right through my preparations for the major part of the case. Also, it has had the unfortunate effect of putting in front of your Lordship and, of course, the public the entire opposition case, so to speak, without my being able to lead all the evidence which I intended to lead in advance which is the normal way that it should have been conducted. MR JUSTICE GRAY: Of course that is right. In a case like this where it is judge alone, in a way one is able to be more . P-7 accommodating with witnesses' personal difficulties. MR IRVING: Yes. MR JUSTICE GRAY: The problem I have now is that you are telling me really I think for the first time that you are unhappy about Professor van Pelt being interposed, but he is here. We have been proceeding on the basis that he would be interposed without any dissent from you. I am rather reluctant, unless you want to press it, to change the schedule. MR IRVING: Well, my Lord, it is obviously too late to change the schedule now, but I wish to draw your attention purely to the disadvantageous effect it has on me. Your Lordship has now been presented with all the hostile evidence in advance of the evidence which I would normally put first as the Claimant. MR JUSTICE GRAY: That is a bit unreal. I have read all the expert reports before the case started, as you know and as Mr Rampton knows. So I knew very well what the case on Auschwitz against you is going to be. MR IRVING: With the utmost respect, my Lord, of course, a lot of our case depends upon the spin that various parties put on words ---- MR JUSTICE GRAY: Of course that is true. MR IRVING: --- and on documents which your Lordship has not even seen yet. The only way that I can introduce those documents, I believe, is by putting them to the expert . P-8 witnesses. These are documents which your Lordship has not even seen yet because, as far as I can see, the bundles do not include them. This is the unfortunate result. But I shall try to prepare it as well as can I over the next few days, my Lord, but I cannot understand why we are being held hostage to this convention in Stockholm. It has nothing to do with this court. It appears to be the only reason why Professor van Pelt was come over at the beginning of the case rather than in the proper timing. MR JUSTICE GRAY: I must say I would have listened with great sympathy to the point you are now making if you had made it a bit earlier. Your problem is you have left it really until the very last minute to raise this objection. MR IRVING: If learned counsel had informed us that the only reason why Professor van Pelt was over at this end of the month rather than in the proper period was for his own personal convenience in order that he can combine it with this junket in Stockholm, then ---- MR RAMPTON: That is just not right. MR JUSTICE GRAY: Let me hear Mr Rampton on this, Mr Irving. What is the reason?
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