Archive/File: people/i/irving.david/libel.suit/transcripts/day002.02 Last-Modified: 2000/07/20 MR JUSTICE GRAY: How we are quite going to deal with it, I do not know, but I think that is what has to be grappled with P-112 and, from my point of view, the sooner the better. MR IRVING: We are also concerned with the Second Defendant here. My Lord, I understand she will not be having a chance to speak and I will not be having a chance to cross-examine her. I think it was a useful exercise because it gave us a chance to see her in action. I think she could have handled herself under cross- examination, had she proposed to do so. MR JUSTICE GRAY: You are entitled to make the point that she is, apparently, not going to give evidence. I have that point and I have now had the opportunity of seeing her on the interview. MR IRVING: The other point I wish to draw attention to in the video is that the other witness who will be called, Professor van Pelt, draws great attention to the building he was standing on which was crematorium No. 2 in Birkenhau. He points to the holes, he points to the room. He says, "This is where it happened". In another video which I will show on another occasion, my Lord, he goes into much greater detail more emotionally saying, "This is where it happened, this was the geographical centre of the Holocaust", and so on. MR JUSTICE GRAY: You say that is a post war reconstruction? MR IRVING: No, my Lord. We say something different about that. This is crematorium building in Birkenhau. What we say about that is that it was not what the Defence make . P-113 out that it was. With your Lordship's permission and consent, I do not want to reveal precisely the arguments we will lead on this occasion. We will give the Defence great time to prepare counter arguments and we have spent a great deal of time and money with architectural consultants and so on providing this evidence. I would prefer to leave that evidence ---- MR RAMPTON: Can I intervene to say something about that? I do not find myself left very happy about what Mr Irving has just said. The days are long gone where a Claimant who responds to a plea of justification is entitled to keep his rabbits in his back pocket and pull them out when it suits him so as to deprive the other side of due notice so that they can deal with it. If he is sitting on expert reports, expert evidence, as indeed he flagged up yesterday in his opening that he was, then we must have them. MR JUSTICE GRAY: I think that is right. Can we just take stock at the moment, Mr Irving, and see where we are going? You did, I think, say you were intending to show three videos. Are you really wanting to show a third one? MR IRVING: I sense a certain impatience of your Lordship. MR JUSTICE GRAY: I hope I am not displaying impatience. I am just telling you how I see the priorities. I am not impatient. . P-114 MR IRVING: Possibly when we come to the Auschwitz phase, it will be useful to show the next one which does concentrate much more closely on the fabric of the sites of Auschwitz. MR JUSTICE GRAY: May I ask you, following up what you told me yesterday about the misunderstanding, whether it is or it is not agreed that Auschwitz should be taken separately and first? MR IRVING: We have agreed that, my Lord, and we have reached a very satisfactory arrangement on the presentation of our principal witnesses from overseas. MR JUSTICE GRAY: That is very good to know. Your opening is really concluded now, as I understand it? MR IRVING: That is so, my Lord. MR JUSTICE GRAY: So I think probably, unless you tell me that there is something else you want to deal with first, the time has come for you to start giving evidence. MR IRVING: What I had proposed to do this morning, my Lord, the bundle which I submitted this morning and replicates bundle D(ii), I think, which we have already had, which is a very large number of photocopies of all the books which I have ever written, apparently, which have been very ably put together by the Defendants. I had put together a selection of pages from those books on which I was going to draw your attention, passages which would refute statements that had been made by the Defendants and also by counsel yesterday. . P-115 MR JUSTICE GRAY: In relation to Auschwitz? MR IRVING: No, my Lord. Do I am apprehend that your Lordship wishes to deal immediately with Auschwitz or other different phases? MR JUSTICE GRAY: Well, if we are going to divide up the trial, and I can see the sense of it, into Auschwitz and the rest, it seems to me at the moment, and Mr Rampton may take a different view, I do not know, that it is sensible really to plunge into the issues that arise out of Auschwitz rather than going to anything else, because the time for doing that may be when we get to the second, as it were, half of the trial. MR IRVING: My Lord, the Auschwitz matter is an immensely complicated matter involving the assembly of a great deal of expert material, drawings. The Defendants deluged me on Friday evening after close of business with a further 5,000 pages of documents from van Pelt's report. To start straightaway today with that would put me at a gross disadvantage. I am sorry that there may be a misunderstanding. The agreement we reached was on the dates of presentation of our witnesses from beyond the seas, van Pelt in the case of the Defence and Professor McDonald in my case, and I was still hoping and anticipating we could deal with the reputation aspect first which is well prepared, and push Auschwitz along away from us for a while. . P-116 MR JUSTICE GRAY: Well, you say "for a while", I mean how long is the while? MR IRVING: As long as is necessary for me to deal with the reputation aspects of the case. MR JUSTICE GRAY: Well, I do see the sense of your establishing, I think by evidence, your reputation. I do not myself think that will take very long because, bear in mind, I have read a lot of the material. That is not to say I do not want to hear you say it from the witness box in summary. MR IRVING: My Lord, you have read it, but the Press have not. MR JUSTICE GRAY: Yes, but the exercise is not really entirely for the members of the Press. I do not think we want to take a lot of time in dealing with matters which are not uncontentious, but which, perhaps, are not at the heart of what is the true issue between the parties. I am very anxious we get on if we can as soon as possible. Can I just see what Mr Rampton would suggest as the appropriate course? I think my own view is that Mr Irving ought to go into the witness box from now on because I think the case has really been opened. I see the sense of hearing some evidence about his reputation by way of preliminary. MR RAMPTON: I have read his witness statement. Apart from what he said in his opening yesterday, I really have no clue, no real clue, about what his case is on the detailed . P-117 factual issues. I am in the same position as your Lordship found yourself yesterday or said you did. MR JUSTICE GRAY: Yes. MR RAMPTON: I would like to know what his case is and I do not. MR JUSTICE GRAY: Yes, well, I understand that. MR RAMPTON: I do not mind what order he takes to do that. If he wants to saturate with his historiographical issues, his techniques and the inaccuracies of the criticisms which we have made, that is no problem to me at all. Whether he does it from the witness box or whether he does it as part of his opening, again I really do not mind. MR JUSTICE GRAY: No, I do not think it is terribly important, but I think it probably is properly done by evidence rather than by further opening statements. MR RAMPTON: I agree. If he says he is not yet prepared to deal with the Auschwitz issues because they are, indeed, detailed and complicated, that is perfectly all right with us, but I do want to know what his case is and at the moment I do not. MR JUSTICE GRAY: Well, his case is to be found not only in his witness statement plainly but in the pleadings. MR RAMPTON: Yes, I have some of his case from the reply. MR JUSTICE GRAY: Yes. That is quite comprehensive, it appeared to me, on the extent to which Hitler is responsible for the Final Solution, relatively speaking. . P-118 MR RAMPTON: Yes, relatively. MR JUSTICE GRAY: It is not, if I may say so, Mr Irving, very detailed in relation to Auschwitz. I have the broad thrust of your case, but I think there is a lack of detail. MR IRVING: My Lord, I am ignorant of the rules of procedure in this matter. Would it be possible for me to be examined in the witness box on two occasions? MR JUSTICE GRAY: Yes. Let us get clear what is being proposed. It is being proposed that there should be a division of this trial really into two separate compartments, one is Auschwitz which is to an extent a free standing issue, it seems to me, a discrete issue. The other is all the other issues, such as the bombing of Dresden, Hitler's responsibility for the Final Solution, and so on. Obviously, they are not wholly separate, but I think they can be taken separately for the purposes of the trial. MR IRVING: My Lord, I think a perfectly satisfactory solution which the court will, no doubt, find favour with is that I will go into the witness box today and submit myself to cross-examination on my pleadings, on the statements that I have made, on the correspondence that I have submitted to the other parties, on my opening statement and whatever other matters they choose to put to me. I will answer from the baggage that I carry around in my memory. No . P-119 doubt, I will have the opportunity at a later date, possibly when I can go back to my diaries or other papers, to produce materials that I could not produce from memory. I am sure this would be an adequate solution to the problem. MR JUSTICE GRAY: May I make a suggestion and then you can both, if you would like to, comment because I am very conscious you are in person and this is, for obvious reasons, not an easy case for you to conduct in person, but what I would suggest is that you now go into the witness box, that you deal with your reputation and your published works and so on, and you can take it that I have read your witness statement, that you then state, at any rate in broad outline, what your case is on Auschwitz -- I am perfectly happy, as it were, to help you along by asking you questions and then you can elaborate in your answers -- and then for Mr Rampton to cross-examine you in relation to Auschwitz,. MR IRVING: At a later date? MR JUSTICE GRAY: No, straight off, why not? We are dealing with that issue first. MR IRVING: Very well. MR JUSTICE GRAY: Then we will have, I do not know whether this will work in terms of timing, the expert evidence in relation to Auschwitz, hopefully, from your expert and from Professor van Pelt. Then you will have the . P-120 opportunity to make submissions about it either at the very end of the case or, perhaps, at an earlier stage. Does that sound a sensible way of proceeding to you? MR IRVING: I am not too happy about being cross-examined on Auschwitz because our work on that is not complete. Your Lordship may consider this is irrelevant, whether our work on that is completed or not, because I am being asked about my own work and my own writings, and things that I may find out in the future are neither here nor there which is the phrase that I used yesterday, but I am sure your Lordship will have my interests at heart. MR JUSTICE GRAY: Yes. I am very anxious that you should say whatever it is you want to say. Your case should be fully deployed. But the case has been brewing a very long time. I am a bit alarmed to hear that you are not, as it were, fully up to speed on the Auschwitz issue. MR IRVING: We have been fully up to speed repeatedly, my Lord, with all the indications of that phrase. Every time we thought we were up to speed, we then received a fresh avalanche of binders with further documents. MR JUSTICE GRAY: Yes, plus the 5,000 pages on Friday. MR IRVING: Indeed, and more during the weekend.
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