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Subject: Irving v. Penguin & Lipstadt: Judgment IV
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Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-04.01
Last-Modified: 2000/04/11

IV. THE DEFENCE OF JUSTIFICATION: AN OVERVIEW

The parties' statements of case

4.1 Irving having established, as I have found, that Denying
the Holocaust contains passages which are defamatory of him,
it is necessary for the Defendants, if they are to avoid
liability, to establish a defence. The burden of doing so
rests, under the English system of law, upon the Defendants.

4.2 The substantive defence relied on by both Defendants is
justification, that is, that in their natural and ordinary
meaning the passages of which Mr Irving complains are
substantially true. I have already recited, in section II
above, the so-called Lucas-Box meanings or propositions the
truth of which the Defendants seek to establish in order to
make good their defences of justification.

4.3 As practice requires the Defendants also set out in
their formal statement of case, served in February 1997, the
detailed particulars on which they rely in support of their
defence of justification. In November 1999 the Defendants
served a revised document entitled Defendants' Summary of
Case. This document comprehensively rearranges, supplements
and in some cases abandons the particulars previously
served. Irving has, in my view sensibly, raised no objection
to this recasting of the Defendants' case of justification.

4.4 It is to be noted that in the particulars of their case
of justification the Defendants do not confine themselves to
the specific assertions made by Lipstadt in her book. To
give but one example: no mention is made in Denying the
Holocaust of the bombing of Dresden by the Allies in 1945.
Yet section 5 of the Defendants' Summary of Case contains
detailed particulars on that topic criticising Irving's
treatment of the subject in his book Apocalypse 1945: the
Destruction of Dresden. No objection has been taken or, in
my judgment, could be taken to this course since the
Defendants are entitled to rely on Irving's account of the
bombing of Dresden in support of their contention that he
falsifies data and misrepresents evidence. The same applies
to other matters raised by the Defendants in their Summary
of Case which are not mentioned in Denying the Holocaust.

4.5 For his part Irving has, in compliance with the rules,
set out in summary form in his Replies to the Defences of
the Defendants his answer to the allegations and criticisms
advanced by the Defendants in justification of what was
published. In October 1999 the Defendants sought from Irving
answers to a series of detailed requests for further
information about his case. Unfortunately most of those
requests went unanswered. In the result much of Irving's
case in rebuttal of the defence of justification emerged in
the course of his evidence at trial and in the course of his
cross-examination of the witnesses called by the Defendants.
The Defendants, in my view rightly, felt themselves unable
to object.

4.6 The Replies also include an allegation of malice against
both Defendants, apparently introduced in the mistaken
belief that they were relying also upon the defence of fair
comment on a matter of public interest. Malice may
nonetheless be relevant to the issue of damages, if that
arises.

What has to be proved in order for the defence of
justification to succeed

4.7 As I have already mentioned, the burden of proving the
defence of justification rests upon the publishers.
Defamatory words are presumed under English law to be
untrue. It is not incumbent on defendants to prove the truth
of every detail of the defamatory words published: what has
to be proved is the substantial truth of the defamatory
imputations published about the claimant. As it is sometimes
expressed, what must be proved is the truth of the sting of
the defamatory charges made.

4.8 Section 5 of the Defamation Act, 1952 provides:

Justification. In an action for libel . in respect of words
containing two or more distinct charges against the
[claimant], a defence of justification shall not fail by
reason only that the truth of every charge is not proved if
the words not proved to be true do not materially injure the
[claimant's] reputation having regard to the truth of the
remaining charges.

It may accordingly be necessary, in a case like the present
where a number of defamatory imputations are the subject of
complaint, to consider whether such imputations (if any) as
the Defendants have failed to prove to be true materially
injure the reputation of the claimant in the light of those
imputations against him which have been proved to be true.

4.9 The contention for the Defendants is that they have
proved the substantial truth of what was published, so that
the defence of justification succeeds without the need for
resort to section 5. Irving, however, points out that there
are imputations which the Defendants made in the book which
they have not sought to prove to be true. The principal such
imputation is that Irving agreed to participate in a
conference at which representatives of violent and extremist
groups such as Hezbollah were due to speak. Irving contends
that this defamatory imputation is so serious that the
Defendants' failure to prove it or even to attempt to prove
it is fatal to their plea of justification. The Defendants
on the other hand argue that by virtue of section 5 of the
1952 Act their defence of justification should succeed
notwithstanding their failure to prove the truth of this
imputation because, relative to the other serious
imputations which they maintain they have proved to be true,
it has no significant deleterious effect on the reputation
of Irving.

4.10 The standard of proof in civil cases is normally that
parties must prove their claims or defences, as the case may
be, on the balance of probabilities. In the present case
Irving argued, however, that, since the imputations against
him were so grave, a higher standard of proof should be
applied to the case of the justification advanced by the
Defendants. There is a line of authority which establishes
that, whilst the standard of proof remains the civil
standard, the more serious the allegation the less likely it
is that the event occurred and hence the stronger should be
the evidence before the court concludes that the allegation
is established on the balance of probability . I will adopt
that approach when deciding if the truth of the defamatory
imputations made against Irving has been established.

Pattern of the judgment on the issue of justification

4.11 It is convenient, in order that the pattern of the
succeeding sections of this judgment is clear, that at this
stage I explain how I propose to deal with the matters
raised by the defence by way of justification. For the most
part they relate to the period of the Third Reich. In
geographical terms the events with which it is necessary to
deal are centred on Berlin but they extend to most of the
countries conquered by the Nazis. The Defendants rely in
addition on the publications, utterances and conduct of
Irving over the last thirty years. The number of documents
involved is huge. The volume of evidence, mostly expert
evidence, is massive. In these circumstances it has proved
necessary, for purely practical reasons, to divide up the
allegations made by the Defendants into a series of separate
headings.

4.12 In the next eight sections of this judgment I shall
attempt to summarise in some detail the arguments deployed
by the parties in relation to the allegations made under
those headings. I shall not attempt to rehearse each and
every point taken in the reports submitted by the
Defendants' experts. Some of the criticisms made of Irving's
historiography appear rather pedantic. In any case both
sides have agreed that I should confine myself to the issues
which have been ventilated by one side or the other in cross-
examination. Whilst I will deal with the Defendants' case on
justification under the separate headings which I have
mentioned, it is important to note that it is an essential
feature of the Defendants' case that the allegations on
which they rely overlap and (as the Defendants put it)
converge, thus providing the foundation of their defence of
justification.

4.13 Having summarised the parties' rival contentions, I
shall then in a separate section of the judgement set out my
conclusions on the central issue whether or not the defence
of justification succeeds.

Evidence adduced in relation to the issue of justification

4.14 Before setting out the arguments and evidence, I will
identify the witnesses whose evidence was tendered on each
side in relation to the defence of justification.

4.15 I start with the evidence for the Defendants. As I have
already said, Professor Lipstadt did not give evidence
(although a witness statement from her had been served).

4.16 The only witness of fact for the Defendants was Ms
Rebecca Guttman who is employed by the American Jewish
Committee as an executive assistant. Her statement, admitted
under the Civil Evidence Act, related to an event arranged
by an allegedly right-wing organisation in the US with which
Irving is said to have connections.

4.17 The main corpus of evidence for the Defendants was
provided by academic historians whose evidence was by
consent admitted as expert evidence. Written and oral
evidence was submitted by the following:

(i) Professor Richard Evans, who is Professor of Modern
History at the University of Cambridge and has written many
historical works about Germany. He gave evidence principally
about Irving's historiography, his exculpation of Hitler and
hiis denial of the Holocaust.

(ii) Professor Robert Jan van Pelt, who is a Professor of
Architecture in the School of Architecture, University of
Waterloo in Canada. Professor van Pelt is an acknowledged
authority on Auschwitz, about which he has written
extensively, and this was the subject of his evidence.

(iii) Professor Christopher Browning, who is a Professor of
History at Pacific Lutheran University, Tacoma, Washington.
He gave evidence on the evidence about the implementation of
the Final Solution, covering the shooting of Jews and others
in the East and the gassing of Jews in death camps (apart
from Auschwitz).

(iv) Dr Peter Longerich, who is Reader in the Department of
German at the Royal Holloway College, University of London
and a specialist in the Nazi era. He gave evidence of
Hitler's role in the persecution of the Jews under the Nazi
regime and of the systematic character of the Nazi policy
for the extermination of the Jews.

(v) Professor Hajo Funke, who is Professor of Political
Science at the Free University of Berlin. He gave evidence
of Irving's alleged association with right-wing and neo-Nazi
groups and individuals in Germany.

The reports submitted by these experts ran to a total of
more than two thousand pages

4.18 Not unnaturally (since it is his views and his conduct
as an historian which are being attacked by the Defendants)
evidence in rebuttal of the case of the Defendants on
justification came predominantly from Irving himself. The
course which was taken with his evidence was as follows: he
submitted a brief witness statement, which did not address
the majority of the particulars relied on by the Defendants
in support of their plea of justification. He provided some
elaboration of his response to that plea in the course of
his opening and in the course of answers to my questions.
But it was mainly in the course of his answers in cross-
examination and his cross-examination of the Defendants'
witnesses that the detail of his case emerged.

4.19 In support of his denial of the allegation that he
broke an agreement in relation to the microfiches in the
Moscow archive containing the diaries of Goebbels, Irving
called Peter Millar, a freelance journalist, who at the time
of the discovery of those diaries in 1992 was acting for The
Sunday Times.

4.20 Irving summoned to give evidence on his behalf two
historians who were unwilling to testify voluntarily. Their
evidence was directed primarily to the question of Irving's
standing as an historian (in which connection I have already
mentioned them) rather than to the plea of justification.
The first was Professor Donald Watt, who is an Emeritus
Professor at the London School of Economics and was
described by Irving as "the doyen of diplomatic historians".
Professor Watt was invited by Irving to give evidence about
the evaluation of wartime documentation and about Irving's
reputation and ability as an historian. The other witness
summoned by Irving to give evidence on his behalf was Sir
John Keegan, the Defence Editor for Telegraph Newspapers
whose knighthood as for services to military history. He too
dealt with Irving's standing as an historian. Another
witness who gave evidence for Irving, in his case
voluntarily, was Professor Kevin Macdonald, who is a
Professor of Psychology at California State University-Long
Beach. He gave evidence on what he termed "Jewish-gentile
interactions" from the perspective of evolutionary biology.
There was no cross-examination by the Defendants' counsel of
any of these witnesses.

4.21 In the course of my summary of the evidence and
arguments on the issue of justification, I shall need to
make frequent reference to the distinguished academic
experts whom, I have identified above. I hope that they will
understand if, in referring to them, I dispense with their
academic titles (as I have done with in the case of
Professor Lipstadt). No disrespect is intended: it simply
makes for easier reading.


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