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Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts//day031.04

Archive/File: people/i/irving.david/libel.suit/transcripts/day031.04
Last-Modified: 2000/07/25

       MR RAMPTON:  I cannot remember which section it is.  In fact,

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             section  is, I think, about eleven pages long.

        MR JUSTICE GRAY:  I do not seem to have got it.  I may well
             have put it in the wrong place.

        MR RAMPTON:  It is eleven pages of single spaced typescript.

        MR JUSTICE GRAY:  No, I do not have it.

        MR RAMPTON:  Here is another copy.

        MR JUSTICE GRAY:  It was not handed in this morning.

        MR RAMPTON:  Again, it follows the scheme of the relevant
             paragraph in the written skeleton.

       MR JUSTICE GRAY:  I cannot really claim to make sense of that,
            just seeing it now.

       MR RAMPTON:  No, of course not.  It is a late section in the
            submission, and it needs to be read in the light of
            everything that has gone before, particularly section  of
            paragraph , the historiography section, but also, of
            course, the Auschwitz section.

       MR JUSTICE GRAY:  Yes.

       MR IRVING:  One other point I am unclear about is precisely
            which matters the Defendants are now claiming protection
            of section  over.

       MR JUSTICE GRAY:  As to that, again, if we are not having oral
            argument, it is only right that you should know how I was
            intending to approach it.  This would normally be
            ventilated in the course of submissions.  Effectively, it
            is really for me to decide and evaluate the seriousness of
            the various imputations against you.

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        MR IRVING:  Whether section applies?

        MR JUSTICE GRAY:  Yes.  I think you understand the way section
              works, and to the extent that there may be unproven some
             relatively minor imputation against you, then it may be
             that I would invoke section  and say, the fact that that
             particular imputation has not been proved by the
             Defendants is not going to mean that their defence of
             justification as a whole fails.

        MR IRVING:  But some matters appear to have been left in limbo
            like, for example, the question of whether there was a
            breach of agreement over the Goebbels diaries in Moscow.

       MR RAMPTON:  No, it is not in limbo at all.  It is treated
            fully in the Moscow section.  Our conclusion about section
             is that it is no application in this case because
            everything that Professor Lipstadt wrote is true in substance.

       MR JUSTICE GRAY:  Quite, but one has to cater for the
            possibility. I think we either do have closing submissions
            or we do not.  I think just having odd thoughts being
            canvassed is just not the way to go about it.  I am making
            every allowance, Mr Irving, for the fact that you are a
            litigant in person.

       MR IRVING: Totally ignorant of the law, yes.

       MR JUSTICE GRAY:  You have the opportunity to address me on
            whatever you wish to address me on.  I do not know whether
            you have had the chance to absorb what the Defendants have

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             said in their closing submissions.  If you want to do it,
             I think now is the opportunity to do it.

        MR IRVING:  Mr Rampton says that he is not pleading section 
             on any of the issues in their pleadings of course, in
             their defence, that is.

        MR RAMPTON:  I do not say that.  What I say is that we do not
             believe that it has any application, because everything we
             said is substantially true.  That does not mean that, if
             your Lordship does not agree with that, section  may not
            need to be applied.

       MR IRVING:  They withdrew the Moscow witnesses and their expert
            reports and the documents that went with them.  They have
            adduced no evidence whatsoever in justification of the
            allegation that I breached the agreement in the Moscow
            diaries therefore, and I cannot see therefore ----

       MR JUSTICE GRAY:  I am in the difficulty that I have to admit
            that I have not got as far in the Defendants' submissions
            as the Moscow section, so I do not know, because I had
            expected that I was going to be taken through the
            submissions this morning or today.

       MR IRVING:  My Lord, I have dealt ----

       MR JUSTICE GRAY:  So I cannot help you on that.

       MR IRVING:  I dealt, probably quite improperly then, with the
            matter in my closing submissions where I dealt with the
            allegations about the Hamas and Hisbollah and Farakan and
            Pramyat in three or four pages in fact of my closing

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             statement and strongly suggested that section should not apply.

        MR JUSTICE GRAY:  Mr Rampton has not really addressed that
             point, but I am well aware there is a great deal in
             Professor Lipstadt's references to you in her book
             which have not been sought to be justified at all.

        MR IRVING:  Yes.

        MR JUSTICE GRAY:  So it seems to me that section  has got to
             play some part, whether it avails the defendants is
            something that I will have decide.

       MR IRVING:  The allegation that I sit in my office beneath a
            portrait of Adolf Hitler and that kind of thing, for which
            again they have pleaded no justification, which will
            certainly go to my seriousness as a historian.  I was
            hoping that we were going to obtain some definitive list
            from the Defendants of what they do intend to put in that
            particular sand bucket.

       MR JUSTICE GRAY:  They are entitled to say, we say everything
            is true, full stop.  As I understand Mr Rampton, that is
            the way it is put in the written submissions, but I think
            I have to approach it on the basis that section  is
            pleaded and it is there if the defendants need it.

       MR RAMPTON:  Then, my Lord, it is up to the Plaintiff, the
            Claimant, to point to those -- I do not mean in any sense
            that it is a great deal -- few parts of what Professor
            Lipstadt wrote, specific parts, that the Defendants have

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             not sought specifically to justify, and to say those parts
             are outside section  because they are so serious; what is
             more, I am entitled to damages for them because they are
             distinct and severable allegations and not part of a
             common sting.

        MR JUSTICE GRAY:  I think, to be fair, from what I have read of
             Mr Irving's closing statement, he makes very clear what he
             says has not been proven by the Defendants.

        MR IRVING:  Round about page onwards.

       MR JUSTICE GRAY:  He does not perhaps dot the I by saying, "and
            that is a severable allegation, which means that, it not
            having been justified, I am entitled to damages", but that
            is the thrust of the way he puts it, as I understand it.

       MR IRVING:  I did look at Gatley last night on the severable
            allegation aspect of it and I am not sure that that is
            relevant in this particular matter.  I tried to work it in
            but I found that I could not.

       MR JUSTICE GRAY:  Whether it is severable or not?

       MR IRVING:  Whether it is severable or not.

       MR JUSTICE GRAY:  There may be something in that.  I really do
            not, if I may say so, think that this is a satisfactory
            way of dealing with it.

       MR IRVING:  Not in my closing submissions?

       MR JUSTICE GRAY:  If you want to make a closing speech and make
            whatever points you like, then of course please do so,
            Mr Irving, and then Mr Rampton can separately reply to

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             those submissions, rather than having odd points batted
             around, because it is becoming unstructured and completely

        MR IRVING:  May I therefore now put to the court by way
             submission the pages of this relating to Pamyat and
             Hisbollah and those allegations?

        MR RAMPTON:  I really find this very difficult.  I have not had
             Mr Irving's submission long enough even to have had time
             to look at it.  If I had had, I might have had something
            to say about it.  It is as simple as that.  I do not think
            at this stage in the case it is satisfactory.  I am
            leaving aside entirely the inconvenience to your
            Lordship.  It is not satisfactory to the other party that
            the Claimant should suddenly stand up and make a row of
            oral submissions.

       MR IRVING:  My Lord this submission is --

       MR RAMPTON:  I am sorry, Mr Irving.  If Mr Irving has serious
            submissions of fact and law to make about the defence and
            the way in which it is presented, then we should have them
            in writing and in time to respond to them.  We have not
            had that opportunity.

       MR JUSTICE GRAY:  Mr Rampton, I am sorry, I had expected that
            today you would be making your submissions, and you do not
            want to make them.

       MR RAMPTON:  But they are all in here, both of law and of fact,
            in seriatim and in detail.  I have nothing to add to what

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             I wrote.

        MR JUSTICE GRAY:  Very well.  Subject to either of you, I think
             I will adjourn now and we will resume tomorrow, but
             I would like to be absolutely clear in my own mind,
             because there seems to have been some confusion about
             today, what it is that is proposed to be done tomorrow.
             Are we just having statements for public consumption?  If
             so, how long is each side likely to take and is there
             going to be anything else dealt with tomorrow?

       MR RAMPTON:  No.  I have no present intention and, if I should
            be prompted to change that, of course, I will tell your
            Lordship.  I have no present intention of making any
            submissions on the facts or the law that are not contained
            in this file.  I therefore intend, with your Lordship's
            permission, to make a relatively short, maybe an hour and
            a half, two hour statement, setting out in summary what
            the Defendants' case is to show that what Professor
            Lipstadt wrote and Penguin published was in substance true
            in every single respect.  That includes, for example, the
            Hitler portrait, which is a mere aspect of a wider
            allegation of Hitler partisanship.  It includes the
            Stockholm meeting, which in its natural meaning is merely
            a particular example of a much wider picture, that is to
            say adherence to and association with right-wing,
            anti-Semitic principles and people.

       MR IRVING:  My Lord, I must then ask you to advise me whether

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             tomorrow I should make a separate submission on section 
             matters, or whether I can leave it bound up in my closing
             statement as I do.

        MR JUSTICE GRAY:  I would leave it bound up if I were you, but
             what are you proposing to do?  Like Mr Rampton, speak for
             an hour and a half, two hours?

        MR IRVING:  Based upon a cut down version of this text, I will
             speak the same length as Mr Rampton.

        MR JUSTICE GRAY:  Very well.  10.30 tomorrow.

            (The court adjourned until the following day).

















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