Archive/File: people/i/irving.david/libel.suit/transcripts/day001.01 Last-Modified: 2000/07/20 IN THE ROYAL COURTS OF JUSTICE 1996 I. No. 113 QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London Tuesday, 11th January 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 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) PROCEEDINGS - DAY ONE . P-1 Tuesday, 11th January 2000. MR JUSTICE GRAY: Mr Irving and Mr Rampton, I am conscious that this court is not capable of accommodating all who would like to be here. MR RAMPTON: Including counsel, my Lord! THE CHAIRMAN: Including counsel -- you have rather more space than some of the people at the back. All I can say is that we have done our best to find a court that can accommodate the technology and is physically big enough to cope with all the bundles. I would like to be able to say that we could try to find another court where everybody could be found a place to sit down, but I just do not think it is possible. I will make enquiries, but it is very desirable that everybody who wants to be here should be here and I am afraid they are not. So I will make enquiries, but I think we will probably have to stay here, so I hope everyone will put up with the discomfort and I am sorry about it. Mr Irving, I have a copy of your opening statement. Are there any other preliminary matters that need to be discussed and decided before you embark on it? MR IRVING: My Lord, I did address a letter to you within the last few days recommending that before I embark on my opening statement, with your Lordship's permission, we address one or two procedural matters ---- . P-2 MR JUSTICE GRAY: Yes, I thought there might be. MR IRVING: --- covering the opening phase and also how, with the agreement of the Defendants, we propose to structure the hearing of this action. MR JUSTICE GRAY: Yes. MR IRVING: The most interesting part of the action in the light of history is, undoubtedly, the Holocaust and Auschwitz and is also, I think we all apprehend, the most complicated to prepare. By agreement between the parties, we propose to divide the action into these two phases, but basically all the rest followed by Auschwitz, if I have understood the proposals also made by the Defendants in this connection? MR RAMPTON: I think that is a misunderstanding. I had supposed that we were going to do Auschwitz first, and if that causes Mr Irving a difficulty -- I am not saying whose fault the understanding is, but misunderstanding, however, it undoubtedly is -- we have scheduled our Auschwitz expert, Professor van Pelt, it to be here for the last week in January which is about when I expected to start my cross-examination. MR JUSTICE GRAY: So what is being proposed, that the whole case should be divided, as it were, into two? MR RAMPTON: No, I do not think so -- well, in two, yes. What is proposed by us (and which Mr Irving has agreed to, though it appears there is a misunderstanding about the . P-3 timing of it) was that Auschwitz should be dealt with as a discrete or separate topic. MR JUSTICE GRAY: With the Claimant's evidence and then the Defendants' evidence. MR RAMPTON: The Claimant gives his evidence, I would then cross-examine him and immediately following that or his own re-examination, I would call the Auschwitz expert for the Defence, Professor van Pelt, who can be cross- examined by Mr Irving. I had expected that process to start at the end of this month. From what Mr Irving has just said, it now appears that he has thought that Auschwitz would come at the end of the case which is contrary to my understanding. MR JUSTICE GRAY: I am a bit surprised that there should be such a fundamental disagreement. MR RAMPTON: I hear it now for the first time with surprise. I utter no word or criticism or blame. I do not know how it comes about. It may be that I should have when I have found out what has happened. But it is extremely inconvenient from our expert's point of view and he is not resident in this country. He is in Canada. MR JUSTICE GRAY: On the other hand, Mr Irving must really be free as Claimant to take his own course, unless agreement can be reached to some other effect. MR RAMPTON: I do not know there is much to be gained by having . P-4 a discussion about that particular topic in front of your Lordship now. It seems to me we have to go back to the drawing board and work out a schedule which suits both sides. But, as matters presently stand, it would cause us a great deal of difficulty as we thought we had an agreement that we could start that topic first, but there it is. MR JUSTICE GRAY: Mr Irving, I think it is right that we do want to spend time discussing this in open court unless and until it proves to be necessary. Do you agree with that? MR IRVING: I agree, my Lord, except that I would remark that I received on Friday evening after close of business about 6,000 pages of document relating to van Pelt's evidence, though I am surprised that they would imagine they could launch straight into the preparation of the Auschwitz section of the hearing without not giving us time to examine each and every one of these documents and have them examined. On the other hand, I agree, we do not have to discuss it in open court. I am perfectly prepared to have Professor van Pelt come over in the middle of whatever else is going on and we can take him as a separate entirety. He is certainly an extremely interesting witness to be heard. MR JUSTICE GRAY: My view really is this at the moment, that . P-5 you are the Claimant, you have a right to take the case all in one bite or in two bites, whichever you like, and if it is to be two bites, then the parties will have to try to reach agreement and, if necessary, I can decide it. MR IRVING: My Lord, we will try to reach an agreement behind the scenes with the Defendants in this matter. MR JUSTICE GRAY: Will you try? I do realize you are wrestling with a pretty enormous burden as a litigant in person. MR RAMPTON: That I entirely understand and it gives rise again in an entirely neutral way to this small problem: my cross-examination of Mr Irving will consist in some considerable degree of reference to Professor van Pelt's report and underlying documents, particularly the blueprints and the contemporaneous journal. I cannot judge when Mr Irving will finish his evidence-in- chief, but as soon as he does, then (as with him) I must be free, I believe, to cross-examine in whichever order I see fit. MR JUSTICE GRAY: Of course. MR RAMPTON: Therefore, as I say, I expected him to finish his evidence-in-chief probably towards the end of January by which time I would start straightaway with Auschwitz. MR JUSTICE GRAY: What I would like to do at some stage (and I think now is not the right time) is to work out an anticipated programme. I am not going to say anything about time limits at the moment, but this is the kind of case where it may become necessary to keep the thing . P-6 within sensible bounds. MR RAMPTON: Absolutely, yes. MR JUSTICE GRAY: But I do not think now is the time because I have not the feel for how it is going to go and I do not think it is right to ask Mr Irving to estimate anything at the moment. MR IRVING: We all have constraints imposed on us, my Lord, by the fact that we have witnesses coming from overseas who have to fit in their visits here with their own academic time-tables. For this reason, I am showing a great degree of flexibility over the timetable and i am sure the Defendants will show the same courtesy. MR JUSTICE GRAY: In a day or two's time, I think, if we spend half an hour -- perhaps if you would both like to think about it before then -- trying to work out how we hope we will make progress, and then do our level best to stick whatever programme we have decided on. MR IRVING: Very well, my Lord. MR JUSTICE GRAY: I think that would be sensible. MR IRVING: I think that is probably the only advance procedural matter which I wished to address at this stage, my Lord, and with your Lordship's permission, I will now commence with my opening statement. MR JUSTICE GRAY: Can I just raise one small topic with you, which is that you wrote, I think, that you are intending to show a couple of video clips. . P-7 MR IRVING: I do not think we will get to that today, my Lord. MR JUSTICE GRAY: Right. I was not clear why they should form part of your opening. That is the only... MR IRVING: They do not form part of the opening, my Lord. There are immediately following it. MR JUSTICE GRAY: Right. If there is no objection, there is no objection. There is not. MR IRVING: One of the video clips I wish to show largely because it contains about 20 minutes of the Second Defendant talking on television and, as I understand, the Second Defendant will probably not be giving evidence in person, and I thought it was fair that we should hear her in her own words explaining her position MR JUSTICE GRAY: Yes. MR RAMPTON: My Lord, before Mr Irving opens his case, can I say this in advance? I say it now and I hope I will not need to say it again. So far as the introduction of evidence by Mr Irving is concerned, there will be only two grounds on which I shall ever object, since this is a case which is being tried without a jury; the first is that it is a waste of time and the second is that it is designed to catch the public eye and is not relevant to the case. My Lord, those are the only two matters, otherwise I am happy to leave it to your Lordship. There may be whole areas which are not really much to do with the case, but if Mr Irving wants to go down those roads, then subject to . P-8 case management, I have no objection. MR JUSTICE GRAY: It appeared to me, having now spent quite a lot of time with the papers, in a curious way it is a case that does not depend to a very great extent on the oral evidence which is an unusual feature of a case of this length. MR IRVING: My Lord, in this particular video which I wish to show, there are passages which show the Second Defendant making certain statements on which I wish to rely and also Professor van Pelt standing in a certain position in the site of Auschwitz making certain statements upon which I wish also to rely. MR JUSTICE GRAY: There is no objection taken, so I would not dream of preventing you doing it.
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