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Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts/day007.10


Archive/File: people/i/irving.david/libel.suit/transcripts/day007.10
Last-Modified: 2000/07/20

   MR JUSTICE GRAY:  Shall we have a discussion about Auschwitz
        now rather than?

.          P-81



   A.   We could try to -- I think we will dispose of it before
        lunch.
   MR JUSTICE GRAY:  If you found that a problem and you want more
        time, just say so, but why do you not go back to your
        seat?
                  < (The witness stood down)
   MR RAMPTON:  My Lord, I will sit down because I would like
        Mr Irving to take this argument.
   MR JUSTICE GRAY:  Yes, Mr Irving?
   MR IRVING:  My Lord, if I can get to the legal precedents out
        of the way first, it is Edgington v. Fitzmorris with which
        I am sure your Lord is familiar, the statement by Bowen LJ
        that the state of a man's mind is as much a fact of the
        matter as the state of his digestion.  What is very
        material in this case is the state of my mind when I am
        writing the books.
                  We are partially examining in that, in the
        materials that we have been going over over the last few
        days in the proper manner, but I do not think that the
        state of Auschwitz or the state of what happened during
        the war years is nearly as material to the issues as
        pleaded as the state of my mind, if I can put it like
        that.
                  The issues as pleaded, in my view, bear a strong
        resemblance to the law in tort, the distinction with which
        your Lordship will be familiar between deceit and

.          P-82



        negligence.  The defence that the Defendants have pleaded
        is, basically, one of deceit, that I have had documents
        before me at the time I wrote the books, that wilfully or
        perversely attached to those documents meanings that no
        reasonable man could say they could bear.
   MR JUSTICE GRAY:  That is part of the Defendants' case.
   MR IRVING:  That is part of the defence.  But they go beyond
        that, my Lord, in a manner which I would aver a Plaintiff
        would be tempted to do if he has pleaded initially the
        case in deceit and, in finding that he is not making that
        case, he then ventures to throw in negligence as well,
        although he has not pleaded it.  He is not allowed to do
        that without amending his pleadings and this is a very
        serious matter for the court to consider.  If you find, my
        Lord, that the Defendants in this action are trying to
        plead negligence, if I can put it like that, as they have
        been saying.
   MR RAMPTON:  No.
   MR IRVING:  Mr Rampton --
   MR RAMPTON:  We are not.
   MR IRVING:  If they are saying, in effect, Mr Irving is a
        rotten historian, he did not do his job properly.  He
        spoke about Auschwitz, he wrote about Auschwitz and
the
        Holocaust.  He ought to have known better, then this
is a
        plea of negligence.  They have not pleaded negligence
in
        the pleadings as yet before the court, my Lord, and,
of

.          P-83



        course, it is perfectly open to them to go to your
        Lordship at any time and seek your Lordship's leave to
        amend their pleadings.  It would be a very grave step
for
        them to take because I would immediately ask your
Lordship
        order that all the costs up to that point should be
borne
        by the Defendants.
   MR JUSTICE GRAY:  They have not done it yet, so...
   MR IRVING:  No, my Lord, they are still attempting to
plead,
        effectively, deceit, and I suggest that they have not
yet
        established a substantial case in deceit, but that is
        outside the realm of this argument. What is far more
        important is; what is the purpose of looking at what
        happened in Auschwitz and in the camps of Belzec,
        Treblinka and elsewhere if it was not known to me at
the
        time I wrote the book.  It may be of the utmost
interest
        to history and for the purposes of historiography and
it
        has not escaped me and I am sure it has not escaped
your
        Lordship reading, as you say you do, the press
accounts
        that people hope that this will draw a line under the
        Holocaust and we shall establish what happened at
        Auschwitz and so on.  That is not the purpose of this
        case.
   MR JUSTICE GRAY:  Well, at the moment I am with you to this
        extent, that it seems to me that if you are able to
say of
        any particular piece of evidence relating to
Auschwitz,
        well, it was not available to me at the time, I find
it

.          P-84



        difficult at the moment to see how that really is
going to
        assist the Defendant's case.  Because their case, as
        I understand it, is that what you have said about
        Auschwitz flies in the face of the evidence, and that
the
        inference they ask me to draw is that you must have
known
        that it flew in the face of the evidence.
   MR IRVING:  I ought to have known.  There is a subtle
        difference, my Lord.  Must have known -- if they wish
to
        prove I must have known it, I submit that they had to
        establish that that material was at some material time
        before me when I wrote either or any of the editions -
-
   MR JUSTICE GRAY:  Well, I think "available to you".  I
think it
        is not just a matter of whether it was, in fact,
before
        you, because if you knew it was there and you, as it
were,
        put your telescope to your blind eye and ignored it,
then
        that is as good as having seen it, and decided to
suppress
        it, as they would put it.
   MR IRVING:  My Lord, material may very well be there in
Moscow
        or on the far side of the Fiji Islands for all I know
but
        there is a limit to what a reasonable person can
expect
        one historian in my position to do by way of research
into
        a subject which is beyond the purview of the books
which
        he is know to write.
   MR JUSTICE GRAY:  I agree with you, it is a question of
degree.
   MR IRVING:  It is a question of degree, my Lord.  It is
quite
        possible that the very capable researchers (and I have
to

.          P-85



        admire the effort they have put into this case) who
are
        backing learned counsel in this matter for the
defence,
        would have found documents after the expenditure of
very
        consider sums of money, as they have, in the defence
of
        this matter.  But no reasonable person can hold that
        against me that I did not find these documents or come
to
        those conclusions based on those documents and
certainly
        not 30 years ago at a time when none of these
documents
        were available.
                  So it is an argument in negligence which
they
        are trying to make, my Lord, and I am asking that you
bear
        that firmly in mind at the very least.  And I have
drawn
        up -- your Lordship will see three guidelines that I
would
        ask your Lordship possibly to accept, possibly with
        amendments.  They are on the first page.
   MR JUSTICE GRAY:  Yes.
   MR IRVING:  Does it go to the proof of wilful deceit, the
        evidence that the Defendants are adducing?  What
materials
        were before the claimant, myself, at the time I wrote
the
        book or books referred to because, of course, we are
not
        just going to refer to Hitler's War.  I understand
other
        books are going to be the topic of discussion by the
        defendants. I respectfully submit that ephemeral
spoken
        utterances particularly extempore, unscripted talks
are
        less material to this action than books and I would
like
        to hear your Lordship's view on that.

.          P-86



   MR JUSTICE GRAY:  Well, you are talking about eyewitness
        evidence here?
   MR IRVING:  No, my Lord, no, I am sorry, you misunderstood
me
        there, that if they are holding to me a talk I have
given
        in Los Angeles or something like that, or an answer
        I given at a press conference, this should be given
less
        weight than what I have written in the books.  The
talks
        are ephemeral, they are here today and gone tomorrow.
   MR JUSTICE GRAY:  That is a comment you can make, but
supposing
        you went on on the record at an IHR conference.
   MR IRVING:  Yes. Does that become a book?
   MR JUSTICE GRAY:  With some extreme remarks about
Auschwitz,
        let us assume that, it seems to me that they entitled
to
        rely on that as an instance of Holocaust denial as
they
        would label it.
   MR IRVING:  It is a matter of weighting, my Lord.  That I
would
        ask you to weight each of these utterances and say,
well,
        here he is writing a book which is going to go in
        libraries and used as a reference work by other
        historians.  Clearly, far more weight should be
attached
        to these than off the cuff remarks he makes at an
press
        conference. I am not thinking of any specific remark.
        I am not saying that is my own defence pre-emptively,
I am
        just saying that I would just ask your Lordship to
weight
        them accordingly.
   MR JUSTICE GRAY:  I hear what you say.

.          P-87



   MR IRVING:  Yes. Have they established -- the second point
--
        beyond the balance of probabilities, as I understand
it,
        it is in a civil action like this, that the Claimant
faced
        with various alternative interpretations and following
as
        the Defendants wrongly represent an agenda to
exonerate
        Adolf Hitler put fraudulent meanings on these
materials
        before him, i.e. meanings that were so perverse that
no
        reasonable and unbiased man informed by the same
materials
        and expertise could have arrived at those meanings.
   MR JUSTICE GRAY:  No, I think that is putting the case, or
        asserting that the case against you has to be
established
        at a far higher level than it seems to me that it
actually
        does have to be established.  I think what they have
to
        show, or what they may have to show, I have not heard
        Mr Rampton yet, is that you have misrepresented the
facts
        and that you have done so because you are working to
your
        own ideological agenda.
   MR IRVING:  Wilfully represented, not accidently or
        negligently.
   MR JUSTICE GRAY:  Not accidently, yes, I am cautious about
the
        "wilfully" because that may not help.
   MR IRVING:  They will have to establish the element of
        deliberation in that, my Lord, otherwise it does fall
        under the ambit of "negligence", which they are not
        pleading.
   MR JUSTICE GRAY:  Yes, and No. 3.

.          P-88



   MR IRVING:  What about the element of reasonable doubt, my
        Lord?  Or the balance of probabilities?  You say you
are
        not prepared to accept that.
   MR JUSTICE GRAY:  No, I have not said that.
   MR IRVING:  But which is the part of paragraph 2 which you
find
        difficult to accept then?
   MR JUSTICE GRAY:  It is you asserting that the Defendants
have
        to show that you put as you described it "fraudulent
        meanings" on the materials --
   MR IRVING:  As opposed to negligently doing it.
   MR JUSTICE GRAY:  What I was -- I accept the point you make
on
        negligence -- suggesting to you is that they may not
have
        to establish quite that, but I am inclined to accept
that
        they will have to establish that this was a
        non-accidental, false interpretation placed on
documents
        for the reason that you had your own political agenda,
and
        that I think --
   MR IRVING:  My Lord, for example, the word "haben" and
"Juden"
        is a typical example; was this a deliberate misleading
of
        the word or was it an --
   MR JUSTICE GRAY:  That is a very good example.
   MR IRVING:  A negligent --
   MR JUSTICE GRAY:  A very good example, yes.
   MR IRVING:  Thirdly; have they established -- have the
        Defendants established beyond the balance of
probabilities
        that I wilfully and following that political agenda

.          P-89



        mistranslated or distorted such materials.
   MR JUSTICE GRAY:  I do not find much to disagree with about
        that.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  But, Mr Irving, this is all helpful in a
way,
        but I understood we were going to be having an
argument
        about the Auschwitz evidence I am not sure I
understand --
   MR IRVING:  This comes up --
   MR JUSTICE GRAY:  How this impacts on that.
   MR IRVING:  If they are going to be introducing a lot of
        evidence about Auschwitz which will no doubt be of the
        utmost interest to everybody in this court, and at the
        expense of the person who pays the costs of this action,
        or persons, I think that your Lordship should rule
        repeatedly on what falls within the issues as pleaded and
        pleaded under the ambit of "deceit" rather than of
        "negligence".

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