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Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts//day030.03

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 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 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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