Archive/File: people/i/irving.david/libel.suit/transcripts/day009.01
Last-Modified: 2000/07/20

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

Royal Courts of Justice
                                           Strand, London
                                Tuesday, 25th 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 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 NINE


.          P-1



      (Day 9              Tuesday, 25th January 2000.)

   MR JUSTICE GRAY:  Mr Irving, I have your clip which I obviously
        have not had time to read.  Before we get into that, shall
        we, as proposed, just look ahead and consider what is
        going to be happening?  We are going to have Professor van
        Pelt today, is that right?
   MR RAMPTON:  Yes, my Lord, that right.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  So that the transcript is clear, that is him
        being interposed in order to be called by the Defendants
        and cross-examined because he has commitments elsewhere.
        Is it expected he will be finished in a day?
   MR IRVING:  I doubt it, my Lord.  I think two days.
   MR JUSTICE GRAY:  Right.  So when will he resume?  He cannot be
        here tomorrow, Mr Rampton, can he?
   MR RAMPTON:  He can tomorrow but not Thursday.
   MR JUSTICE GRAY:  So we should get rid of him.
   MR RAMPTON:  If he can be done in two days, so much the better;
        if he cannot, he can come back on Friday.
   MR JUSTICE GRAY:  We have to keep within reasonable bounds so
        I hope he will be finished within two days.
   MR RAMPTON:  Mr Irving's original estimate for him was three
        days.  We asked what the estimate was.  But, if it is two
        days, so much the better.  If we have Friday a blank, as
        it were, then I shall continue cross-examining Mr Irving
        on Friday, I suppose.

.          P-2



   MR JUSTICE GRAY:  Yes.
   MR RAMPTON:  Then on Monday, Professor McDonald, and I do not
        know about Dr Fox, it may be him too.  I do not know.
        That is in Mr Irving's hands.
   MR JUSTICE GRAY:  I cannot remember who Professor McDonald is.
   MR IRVING:  My expert witness.
   MR RAMPTON:  He is a social scientist, I think.
   MR JUSTICE GRAY:  How long is he going to be, just so that you
        are communicating about timing?
   MR IRVING:  I shall be submitting various documents to him with
        your Lordship's permission, my Lord, and it depends on
        whether Mr Rampton wishes to cross-examine him or not.
   MR JUSTICE GRAY:  He may not know the answer to that until he
        knows in more detail what he is going to say.
   MR RAMPTON:  I have a pretty good idea what he is going to
        say.  The answer is if I cross-examine him at all, it will
        be quite shortly, I expect.
   MR JUSTICE GRAY:  And then Fox?
   MR RAMPTON:  I do not know about Mr Fox.  That is Mr Irving's witness.
   MR IRVING:  I expect Dr Fox will be half a day, my Lord, if that.
   MR JUSTICE GRAY:  Right.
   MR RAMPTON:  Then, my Lord, I hope I will be able to complete
        any outstanding issues arising out of Evans and the
        political scientists in the remainder of the four days
of

.          P-3



        that week.
   MR JUSTICE GRAY:  Yes.
   MR RAMPTON:  I would be disappointed if I do not.  I would hope
        I would be quicker than that.
   MR JUSTICE GRAY:  I think I would too.  I think you have been
        through the most -- if I can use the word "laborious"
        without giving offence -- laborious bit.
   MR RAMPTON:  No, not laborious, perhaps the most important
        issues anyway.
   MR JUSTICE GRAY:  Distorting history on Hitler.
   MR RAMPTON:  Distorting Hitler and Holocaust denial by means of
        Auschwitz denial.
   MR JUSTICE GRAY:  So at the end of those four days, will that
        complete your cross-examination?
   MR RAMPTON:  Yes, it should do.  As your Lordship knows,
        Reichskristallnacht is a bit fiddly.
   MR JUSTICE GRAY:  It is quite convoluted.
   MR RAMPTON:  It is convoluted, exactly, so it may take a bit of
        time.  Then, my Lord, we are now being speculative, in a
        sense, provisional, we would hope to start our evidence,
        excluding Professor van Pelt, on Monday, whatever it is of
        February, with possibly Professor Browning, possibly
        Dr Longerich, possibly Professor Evans, I do not know.
        Then I think perhaps the only political scientists we will
        call as a witness is Fulkhan, the German.  But that is a
        little bit in the future.

.          P-4

                  I have put question marks against Levin and
        Eatwell and also against the Russian witness Tarasov
        because, quite frankly, having regard to the witness
        statement of Mr Irving's witness, the journalist, Peter
        Miller, I do not think Mr Tarasov has anything to add at
        all.
   MR JUSTICE GRAY:  I will say again that I think in relation to
        the Moscow diaries some sort of accommodation might be possible.
   MR IRVING:  My Lord, I do wish to make certain fundamental
        observations about the way the case is being conducted so
        far.  I do not know if this is the appropriate moment.
   MR JUSTICE GRAY:  I think now is probably the moment for you to
        do that, unless you would rather reserve it for later?
   MR IRVING:  It is brief but to the point, my Lord.  I am the
        Claimant in this action.  This is my action, and I spent
        yesterday evening indulging in a little bit of light
        reading in the Civil Procedure Rules and my eye alighted
        on Lord Woolf's wise words towards the beginning of the
        introduction to the Rules which states that all steps have
        to be taken to ensure complete equity between the parties.
   MR JUSTICE GRAY:  Of course.  That is my major function.
   MR IRVING:  It is a major departure from the old system.  He
        said, he identified a range of defects in the existing
        civil justice system, the third of which was that it was
        too unequal in that there was a lack of equality between

.          P-5

        the powerful, wealthy litigant and the under-resourced
        litigant.
                  My Lord, I am up against a powerful, wealthy
        litigant here, as evidenced by the fact that I stand here
        alone and on the other side of your Lordship's court are
        sometimes between 20 and 40 experts, researchers,
        solicitors, learned counsel, arrayed against me ----
   MR JUSTICE GRAY:  That had not escaped my notice.
   MR IRVING:  --- funded by the most enormous resources.
        Somehow, the sequence of events has got reversed.  Your
        Lordship will remember that when we embarked on this two
        and a half weeks ago, we were looking at the prospect of
        holding off Auschwitz until towards the end of the
        discussions, but now Auschwitz has somehow come right up
        in front.
                  Their witnesses have been interspersed in the
        middle of my presentation of the case.  It now turns out
        that Professor Robert Jan van Pelt is here at this time
        purely because it is convenient to him because he is going
        on a Holocaust junket to Stockholm on Thursday together
        with the Second Defendant.  I do not see why I should be
        inconvenienced in this way, my Lord.  I do not, frankly,
        understand why your Lordship is tolerating it.
   MR JUSTICE GRAY:  Partly, Mr Irving, because you have not until
        now raised any objection.  We have been discussing for
        some days now when Dr Van Pelt might give his evidence.

.          P-6



        I had understood (and I will be corrected by reference to
        the transcript if I am wrong about this) that you had not
        raised any objection and, indeed, I had understood you to
        concur with his being interposed at this stage.
   MR IRVING:  But the inevitable result is, my Lord, that this
        means that Auschwitz has been brought right to the front
        of this case purely for the convenience of one of the
        witnesses who intends to fly to Stockholm on this lavish
        junket Thursday for which the whole court is having to
        hold its breath for a day.
   MR JUSTICE GRAY:  I am a bit puzzled, Mr Irving, about this
        protest because you were cross-examined for the whole of
        yesterday about Auschwitz, so there is no question of
        Auschwitz having suddenly being brought to the forefront
        of the case.  It was brought to the forefront of the case
        when cross-examination was embarked on yesterday morning.
   MR IRVING:  The inevitable result, of course, has been that it
        has driven a cart and horses right through my preparations
        for the major part of the case.  Also, it has had the
        unfortunate effect of putting in front of your Lordship
        and, of course, the public the entire opposition case, so
        to speak, without my being able to lead all the evidence
        which I intended to lead in advance which is the normal
        way that it should have been conducted.
   MR JUSTICE GRAY:  Of course that is right.  In a case like this
        where it is judge alone, in a way one is able to be more

.          P-7

        accommodating with witnesses' personal difficulties.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  The problem I have now is that you are
        telling me really I think for the first time that you are
        unhappy about Professor van Pelt being interposed, but he
        is here.  We have been proceeding on the basis that he
        would be interposed without any dissent from you.  I am
        rather reluctant, unless you want to press it, to change
        the schedule.
   MR IRVING:  Well, my Lord, it is obviously too late to change
        the schedule now, but I wish to draw your attention purely
        to the disadvantageous effect it has on me.  Your Lordship
        has now been presented with all the hostile evidence in
        advance of the evidence which I would normally put first
        as the Claimant.
   MR JUSTICE GRAY:  That is a bit unreal.  I have read all the
        expert reports before the case started, as you know and as
        Mr Rampton knows.  So I knew very well what the case on
        Auschwitz against you is going to be.
   MR IRVING:  With the utmost respect, my Lord, of course, a lot
        of our case depends upon the spin that various parties put
        on words ----
   MR JUSTICE GRAY:  Of course that is true.
   MR IRVING:  --- and on documents which your Lordship has not
        even seen yet.  The only way that I can introduce those
        documents, I believe, is by putting them to the expert

.          P-8



        witnesses.  These are documents which your Lordship has
        not even seen yet because, as far as I can see, the
        bundles do not include them.  This is the unfortunate
        result.  But I shall try to prepare it as well as can I
        over the next few days, my Lord, but I cannot understand
        why we are being held hostage to this convention in
        Stockholm.  It has nothing to do with this court.  It
        appears to be the only reason why Professor van Pelt was
        come over at the beginning of the case rather than in the
        proper timing.
   MR JUSTICE GRAY:  I must say I would have listened with great
        sympathy to the point you are now making if you had made
        it a bit earlier.  Your problem is you have left it really
        until the very last minute to raise this objection.
   MR IRVING:  If learned counsel had informed us that the only
        reason why Professor van Pelt was over at this end of the
        month rather than in the proper period was for his own
        personal convenience in order that he can combine it with
        this junket in Stockholm, then ----
   MR RAMPTON:  That is just not right.
   MR JUSTICE GRAY:  Let me hear Mr Rampton on this, Mr Irving.
        What is the reason?

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