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IN THE HIGH COURT OF JUSTICE            1996 I. No. 113
                                    Royal Courts of Justice
                                             Strand, London
                                   Tuesday, 14th March 2000



                              MR JUSTICE GRAY


          B E T W E E N:
                             DAVID JOHN CAWDELL IRVING
                        (1) PENGUIN BOOKS LIMITED
                        (2) DEBORAH E. LIPSTADT


       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 THIRTY-ONE

                                 .          1

        (10.30 a.m.)

        MR JUSTICE GRAY:  Mr Irving?

        MR IRVING:  My Lord, I have provided your Lordship a copy of
             the fresh off the presses closing speech which I
             would propose to read tomorrow.

        MR JUSTICE GRAY:  How does that ----

        MR IRVING:  It is 104 pages.  It continues from where the
             version left off which I supplied your Lordship yesterday
             and I have also reversed the order what I would call
            sections 2 and 3 of it.  If I can say simply it starts off
            with have an opening preamble.  It continues, my Lord,
            with a look at some of the historical issues and then only
            after a while does it, after about 30 pages, then go on to
            what I call bundle E matters.

       MR JUSTICE GRAY:  Just so I understand how the two relate to
            one another, I had yesterday from you 56 pages, I think it

       MR IRVING:  Yes.

       MR JUSTICE GRAY:  Are they the first 56 pages?

       MR IRVING:  They are the first 56 pages, but they have been
            cosmetically worked over.  I have ----

       MR JUSTICE GRAY:  Have they?

       MR IRVING:  --- a gentleman who I refer to as my political
            correctness editor, he came over and worked over it for me.

       MR JUSTICE GRAY:  Good.  I have read and marked up slightly

                                 .          2

             what you gave me yesterday.

        MR IRVING:  That is what I feared.  The page numbers will make
             no sense to you now, my Lord, because of the bulk change
             I did.  I switched, effectively, sections and ,
             although they are not numbered, purely to put them into a
             more optimistic up beat sequence.

        MR JUSTICE GRAY:  Right.  I will try to -- I see, yes, it is
             completely changed .

        MR IRVING:  When I get back, my Lord, I am sure it will help
            your Lordship if I produce a brief concordance and fax it
            through to your office which will give your Lordship an overview.

       MR JUSTICE GRAY:  I can probably make my own way through it.

       MR IRVING:  I have put headings in ----

       MR JUSTICE GRAY:  Thank you very much.

       MR IRVING:  --- which will assist your Lordship.  I would also
            just like to say I had not at the time I wrote it had the
            opportunity of reading the Defendants' own statement.  So
            it is written in vacuo, so to speak, not that it will
            alter matters, I am sure.

       MR JUSTICE GRAY:  I think the theory was there was going to be
            an exchange so that is inevitable.

       MR IRVING:  Effectively, there has been an exchange,
            simultaneous change, because I am sure they have not read
            mine and I have not read theirs.

       MR JUSTICE GRAY:  Good. Thank you very much.

                                 .          3

        MR RAMPTON:  Your Lordship has got I think now, I hope, a
             complete version of our written submission.  All the
             sections are now, I hope, complete.

        MR JUSTICE GRAY:  Yes.

        MR RAMPTON:  It is right.  I will not not say any more about
             that at the moment.  It is over 200 pages of rather dense
             reading.  I will tomorrow, as I have your Lordship's
             permission, I think, make a very much shorter summary
             submission orally.  I have not written that yet.  Your
            Lordship will not find any of the contents of it, having
            regard to this, in the least surprising, I am sure.
            I shall try to make sure that your Lordship gets it and
            Mr Irving in good time before the hearing starts tomorrow.

       MR JUSTICE GRAY:  Yes.

       MR RAMPTON:  But I will be surprised if I am on my feet for
            even more than a part of tomorrow morning.

       MR JUSTICE GRAY:  Good.  Mr Irving, you are proposing to do the
            same thing, as I understand it?

       MR IRVING:  I was hoping for some kind of guidance from your
            Lordship.  If your Lordship would mark in bulk or inform
            me in bulk at some time which passages you felt were not
            proper to deal with orally or in detail.  It is a detailed
            submission which I have made to your Lordship and your
            Lordship may feel that some of the matters are too
            detailed to be dealt with in a closing statement.

       MR JUSTICE GRAY:  I think I will give you a bit of guidance

                                 .          4

             because, having read yesterday's 56 pages, and I do not
             say this critically but it did appear to me that there was
             a great deal on the topic about which you obviously feel
             passionately, namely what you see as being a conspiracy to
             bring your career as an author to a premature end.  Those
             are not your words, I appreciate.

        MR IRVING:  I astutely avoided that word.

        MR JUSTICE GRAY:  No, but there is an awful lot on that topic.
             Much of it did not appear to me to have anything to do
            with the Defendants.  You may take a different view, but
            I am not sure that the evidence suggests that the
            Defendants are as involved with all the things of which
            you are complaining as you suggest.  I, therefore, rather
            doubt whether it would be appropriate for you to use this
            court as a platform for what one might call a general
            attack on the conspirators, as you regard them.

       MR IRVING:  That is precisely the view that I expected from
            your Lordship which I obviously anticipated in the letter
            that I attached to the document.

       MR JUSTICE GRAY:  Yes.

       MR IRVING:  I will edit substantially with that in mind before
            I come to make the oral presentation.

       MR JUSTICE GRAY:  Yes.

       MR IRVING:  It will remain a part of the submission that I make
            to the court, but it will not be put in the oral part of
            the submission, if I can put it like that.

                                 .          5

        MR JUSTICE GRAY:  Yes.  I think that is sensible, but beyond
             that I do not think I can really give you much guidance.
             If you were able to hand in what you were proposing to say
             in time for me to look at it, then if there is anything
             I think that is for one reason or another objectionable,
             or indeed Mr Rampton does, then you can be told and you
             can make submissions if you want to why you should be
             allowed to say it.

        MR IRVING:  I think I have a very astute feel for the way the
            court is feeling in this matter and, having got it off my
            chest, if I can put it like that, I will limit what
            I actually say to the matters which I consider to be of relevance.

       MR JUSTICE GRAY:  Yes.  What is at the heart of it, obviously,
            are criticisms that are listed in section

       MR IRVING:  Well...

       MR JUSTICE GRAY:   through, well, to the end.

       MR IRVING:  The problem that I had, of course, is that not
            having been able to cross-examine the Defendants in this
            matter which would have brought forward the links which
            I am sure are there, this was the material which was
            assembled with that in mind.  They have avoided that
            difficulty by not presenting their witnesses for

       MR JUSTICE GRAY:  Yes.  I understand how you feel about that.

       MR IRVING:  And I wanted, nonetheless, to put it before your

                                 .          6

             Lordship.  I also put a certain amount of explanatory
             material in the footnotes which I was not proposing to
             read out, purely to point your Lordship to where the
             documents are so as far as I know they are in the bundles
             or were they are in the daily transcripts.

        MR JUSTICE GRAY:  Yes, good.  Well, then that is ...

        MR RAMPTON:  There is only one other thing I need to do, I am
             sorry, it is to hand in a list of corrections -- they are
             mostly typographical errors and missing references -- for
            our long submission, if I may do that.

       MR JUSTICE GRAY:  Yes.  It is for you to make such oral
            submissions as you wish.

       MR RAMPTON:  I am sorry?

       MR JUSTICE GRAY:  Are you going to make any oral submissions?

       MR RAMPTON:  I am, tomorrow, yes.

       MR JUSTICE GRAY:  Tomorrow, right.

       MR IRVING:  I do not know whether this is the right point to
            your Lordship's attention to the fact that I am
            challenging now the Muller document, purely on the basis
            that it has not been provided to me in the way that your
            Lordship ordered the August 1st 1941 document, and this
            might be the place with which to deal with that.  I
            have dealt with it in the submission that I handed in this

       MR JUSTICE GRAY:  Well, you will have to direct me to where it
            comes because, obviously, I have not read it.

                                 .          7

        MR IRVING:  I have not got it with me, my Lord, but, basically,
             the document was supplied to me on the weekend.  It does
             not advance our knowledge as to the original document or
             the original file.  There are no surrounding documents
             provided with it.  I have not been able to make any more
             detailed researches into the nature of the document.  So
             I have made a submission in the document I have handed
             your Lordship, both on the admissibility of that letter
             and, if your Lordship is minded to admit the letter in
            evidence, nonetheless, also on the content of the letter.

       MR JUSTICE GRAY:  Well, this is all a bit opaque to me.  Are
            you able to point to where you deal with this in your
            revised closing statement?  I simply do not know my way
            around it all because I have only seen it within the last
            couple of minutes.

       MR IRVING:  It was finished at o'clock this morning.

       MR JUSTICE GRAY:  I can understand that.  Even so, if I am
            going to make sense of what you are telling me about the
            Muller document, I need to have the references, do I not?

       MR IRVING:  I shall have to hold that over then, my Lord, until

       MR RAMPTON:  My Lord, I simply do not understand this.  I have
            never understood, apart from the fact that he does not
            like its contents, what Mr Irving's problem with this
            document has been.  We have many documents in the file
            which are original Nazi documents headed "Abschrift" by

                                 .          8

             the person who made the copy because that is what they
             are.  They are copies of original documents that have
             disappeared, but they are contemporaneous copies.

                       We now have have three copies of this document,
             one from Moscow which is where the original copy is held
             in the archive.  That is the one that looks like that.  It
             has a front cover that looks like that.  Your Lordship has
             had all these, I think?

        MR JUSTICE GRAY:  I do not remember that front cover.  Can you
            give me the reference?  I am bound to say I have found it
            in trying to prepare my judgment, extraordinarily
            difficult because of the way in which the documents have
            been got together, but if you can give me the reference to it?

       MR RAMPTON:  It is in N1.  I have not got N1 here,
            unfortunately, but its date is 1st August so I can very
            quickly find it.

       MR JUSTICE GRAY:  Page 49?

       MR RAMPTON:  Yes.  Page 49.  I do not have it here, I am
            afraid, but the 49, the actual copy of which we now have
            three copies is at page 51.

       MR JUSTICE GRAY:  Yes.  I am just reminding myself of what the
            points were that Mr Irving took and he will tell me if
            there are any others.  Firstly, it is an Abschrift;
            secondly, it has a rather security classification given
            its contents, just "Geheim".

                                 .          9

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