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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