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Last-Modified: 2000/07/25

   IN THE HIGH COURT OF JUSTICE            1996 I. No. 113
QUEEN'S BENCH DIVISION

Royal Courts of Justice
                                           Strand, London
                                      Tuesday, 29th February
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 TWENTY-SEVEN



.          P-1



   (10.30 a.m.)
   MR RAMPTON:  I think Mr Irving has something to say, my
Lord.
   MR JUSTICE GRAY:  Yes, Mr Irving?
   MR IRVING:  My Lord, I understand that today I am going to
be
        cross-examining Professor Funke, which is after he has
        been presented to the court.  There are two things I
want
        to mention first.  First of all, I understand from
today's
        Israeli newspapers and yesterday's Washington Post
that
        the Defence now have the Eichmann papers.  In other
words,
        they are going to bring in the Battleship Eichmann in
a
        frantic attempt to rescue their position.
                   I would be very grateful if I had the
chance to
        read them as early as possible rather than just being
        presented with them piecemeal.
   MR RAMPTON:  Yes, of course.  We have not read them yet.
If
        they contain relevant material, those relevant parts
will
        be disclosed at once.
   MR JUSTICE GRAY:  Is that enough?
   MR IRVING:  My Lord, do they not now become discoverable
now
        that they are in their custody?
   MR RAMPTON: No, not unless they are relevant.
   MR JUSTICE GRAY:  I do not know quite what we are talking
about
        is it a diary?
   MR RAMPTON:  I do not know.  I have not seen it.  It has
come
        on e-mail.  It is about 600 pages of memoirs.  That is
all
        I know.  If they contain relevant material, then the

.          P-2



        relevant material, plus context of course, will be
        disclosed.
   MR JUSTICE GRAY:  That is a slightly unconventional
approach,
        is it not?  Normally, it would be a document which
would
        be discoverable if it contained any relevant material.
        You would not normally redact the non-relevant
material.
   MR RAMPTON:  You are allowed to redact that is the case of
        Guardian v. GRE.
   MR JUSTICE GRAY:  Only for good reasons, in my
recollection.
   MR RAMPTON:  No, if it is irrelevant.  I do not really mind
as
        it is in the public domain anyway.
   MR JUSTICE GRAY:  Is it?
   MR RAMPTON:  Yes.  It will be from tomorrow morning.  The
        Israeli government are going to release it to the
public
        at large, so I do not really mind.  But I do not want
to
        lumber the proceedings with a great fat document if it
        does not contain anything relevant.
   MR JUSTICE GRAY:  Nor do I.  It just seems to me, in terms
of
        what Mr Irving should see, he probably ought to see
for
        himself and judge for himself.
   MR RAMPTON:  Yes.  It is not a problem.  It is just that we
        have not looked at it ourselves yet.  It is not even
in
        readable form at the moment.
   MR JUSTICE GRAY:  It may feature in your cross-examination
of
        Mr Irving, I suppose.
   MR RAMPTON:  It may well do.  I will know by the end of the
day

.          P-3



        whether it will, and he will immediately get a copy.
   MR JUSTICE GRAY:  He ought to have the copy by close of
        business today really, ought he not?
   MR RAMPTON:  I agree.
   MR JUSTICE GRAY: Good.  Thank you.  So that deals with
that.
   MR IRVING:  My Lord, inform me, please. Is it not
automatically
        discoverable now that it is within their custody,
        possession and power?
   MR JUSTICE GRAY:  You are going to get it.
   MR IRVING:  Just so it can be quite plain, the whole
document
        rather than a redacted version.
   MR RAMPTON:  No.  I made a mistake.  I thought it had come
        through in e-mail and has been put into readable form.
        Apparently not even that has happened yet.  There is
        something the matter with the electronics.
   MR IRVING: I recommend Macintosh.
   MR RAMPTON:  I do not know what the problem is because I am
        completely ignorant on those matters, so I have to
        surrender to others.
   MR JUSTICE GRAY:  Mr Irving, the order I am making, unless
I am
        told that it is electronically impossible to comply
with
        it, is that you should be provided with a copy.
   MR IRVING:  In electronic form if necessary.
   MR JUSTICE GRAY:  In electronic form if necessary, of the
        Eichmann document by close of business, by which I
mean,
        let us say, 5 p.m. today.

.          P-4



   MR IRVING:  I am indebted to your Lordship.  The second
point
        concerns the videos.  I see that preparation has been
made
        for display of videos.  I have no notion of which
video is
        going to be shown.  It may well be that I would have
        objections to make to the videos for the reasons that
        I have already adumbrated to your Lordship, namely
videos
        that have been edited in some way or prepared for
        broadcasting with sound effects and violins and
subtitles,
        which may have been tendentiously translated, and the
rest
        of it.  I see the equipment is there.  I certainly
have a
        day of cross-examination of Professor Funke to do
today
        and I think that I should be told in advance what the
        videos are and be given a chance to make
representations.
   MR JUSTICE GRAY:  I have some sympathy with that.
   MR RAMPTON:  What I propose to do is to ask Professor Funke
to
        lay the ground for these videos, because I do not
think it
        is right to spring them on Mr Irving or your Lordship
just
        like that, by asking him.  Your Lordship will know
that at
        the back of his report there is an appendix containing
a
        list of names and descriptions.  I am going to ask him
to
        go through the important characters in that list, to
        expand on who they are and what they stand for, then
to
        ask him how far he is aware that those people have had
        contact with Mr Irving, because Professor Funke has
had
        access to Mr Irving's diary correspondence and so on,
and
        to ask him the nature of those contacts speaking to

.          P-5



        us, for example, and the extent of them.  That I hope
is a
        short cut through what is a very voluminous and in
some
        senses rather intricate report.  Then I propose to
show
        the videos which, as far as possible, we have stripped
of
        editorial content.  Most of them simply show people
        speaking, including, to a large extent, Mr Irving
himself
        on a number ----
   MR JUSTICE GRAY:  Well, I am not a jury and I am quite
capable,
        I hope, sorting out the wheat from the chaff.
   MR RAMPTON:   Precisely -- on a limited number of occasions
in
        Germany in the 1990s.  What Professor Funke will do is
to
        identify Mr Irving's fellow travellers, if I can call
them
        that.
   MR JUSTICE GRAY:  Will he also identify in advance what
film is
        going to be shown so that, if Mr Irving has an
objection,
        he can make it.
   MR RAMPTON:  He or I or Miss Rogers will do that.
   MR JUSTICE GRAY:  How long is the video going to take?
   MR RAMPTON:  They can be very short.  One of them is really
        quite long, but I do not believe it needs to have the
        whole of it shown.  Most of them are really quite
short.
        One is about 10 seconds.
   MR JUSTICE GRAY:  The total?
   MR RAMPTON:  Total about an hour.
   MR RAMPTON:  The long one I spoke of is about 70 minutes,
but
        there is an awful lot of, if I may use the word,
ranting,

.          P-6



        not by Mr Irving alone, in the course of that video
and
        one does not want to see the whole of it, necessarily.
        One merely needs to whiz forwards so that Professor
Funke
        can say who the people are.  That is 70 minutes but
one
        does not need to watch the whole of it.  The rest in
total
        are about 45 minutes.  If I said an hour for the
videos
        and about three quarters of an hour in preparation,
that
        will then set the scene for cross-examination.
   MR IRVING:  My Lord, if it is purely, as I understand it,
what
        Muller would have called visual materials, then I have
no
        objection to them being shown.  But if in any
attention is
        paid to the content of what is alleged to be said, or
the
        extracts taken, then of course I would want advance
notice
        of them.
   MR JUSTICE GRAY:  Let us leave it like this.  You are going
to
        get some idea from Mr Funke's evidence what these
clips
        are going to be.  If you want to raise an objection
when
        you know what you are going to be presented with, then
do
        so.  Shall we leave it like that?
   MR RAMPTON:  I will tell Mr Irving now what the meetings
are.
        There is one on at Agonou in Azas on 12th November
1989
        organised by Mr Christophersen.  There is a meeting in
        Munich under the legend or heading "Vaheit macht Frey"
on
        21st April 1990.  There is a meeting at Passau under
the
        aegis of the DVU and Mr Gerhard Frey on 16th February
        1991.  There is what is called the Leuchter Congress,

.          P-7



        which is the long tape, on 23rd March 1991, again in
        Munich, and that is one in which a number of names
which
        will be familiar to your Lordship, if not now,
certainly
        by end of this exercise, feature.  Then finally there
is
        what is, in some ways we would suppose, perhaps the
most
        striking, which is an outdoor rally in a place called
        Halle in what used to be East Germany but by 9th
November
        1991 was in the reunited Germany.
   MR JUSTICE GRAY:  That is very helpful.  Thank you very
much.
   MR IRVING:  I think I will only have problems with the
Halle
        one because that particular piece of film has been
very
        heavily chopped around, cutting out very important
parts
        of what I said.  So, as I said before, if this is
purely a
        rogues gallery, I have no objection to the court being
        shown it at this stage.
   MR JUSTICE GRAY:  Have we got a transcript of what you said
at
        Halle?
   MR IRVING:  We have made a transcript of as much as is on
the
        film as far as we possibly can.
   MR JUSTICE GRAY:  Just what is on the film?  That is your
        point.
   MR RAMPTON:  I have not got that.
   MR IRVING:  It has been on my website for the last year.
   MR RAMPTON:  That is a peculiar way of making disclosure.
Oh,
        it is not.
   MR JUSTICE GRAY:  It has probably been disclosed as well.

.          P-8



        Anyway, that is the one you may be objecting to?
   MR IRVING:  Purely to the text of the film rather than the
        rogues gallery pictures of these alleged sleezy
friends of
        mine.
   MR JUSTICE GRAY:  Right.
   MR RAMPTON:  Now the Professor needs to be sworn.
                   < Professor Funke, affirmed.
                   < Examined by Mr Rampton QC
   MR JUSTICE GRAY:  Herr Funke, do sit down.
   MR RAMPTON:  Professor Funke, have you made a report for the
        purposes of this case?
   A.   Yes, I did.
   Q.   So far as it contains statements of fact, are you
        satisfied that they are as true as they can be?
   A.   I think so.
   Q.   And, so far as they contain expressions of opinion, are
        you satisfied that those opinions are fair?
   A.   I think so.

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