Archive/File: people/i/irving.david/libel.suit/transcripts/day004.02 Last-Modified: 2000/08/01 MR JUSTICE GRAY: At some stage I am, presumably, going to have to absorb it. I have noted, Mr Irving -- MR IRVING: The third point, my Lord. I have suggested a . P-9 proposed timetable for witnesses. MR JUSTICE GRAY: Before we get to that, could I go back to your point (1)? I am a little concerned you feel part of your case has gone by the board. MR IRVING: Indeed, my Lord. If your Lordship would indicate how and in what manner I would be able to introduce the evidence I propose to lead? MR JUSTICE GRAY: I thought about that. Your main concern is you are obviously getting it into my head. MR IRVING: Getting it before your Lordship. MR JUSTICE GRAY: Quite. Well, if I may say so, I think you have produced enough in writing and, indeed, to some extent in your opening, in your short evidence-in-chief, in regard to your reputation. I do not think you need be concerned about that. That certainly has not gone by the board, as far as I am concerned. As far as the attempt to destroy your legitimacy as an historian, I know what your case is, but I think I have to remind you that this is actually an action on Professor Lipstadt' book, so -- MR IRVING: I anticipated your Lordship would say that, but in view of the fact that the sources on which that book draws have been part and parcel of this campaign to destroy my legitimacy, as I would have attempted to establish in the evidence that I would have proposed to lead, in that respect I consider it to be relevant to this case. MR JUSTICE GRAY: Well, up to a point. I think the fact is . P-10 that if Professor Lipstadt has jumped on board a sort of bandwagon of critics of yours. MR IRVING: Use that phrase. MR JUSTICE GRAY: She has to justify what she has adopted from that. MR IRVING: It is very difficult to justify if one knows in advance this particular witness is not proposing to submit herself to cross-examination. MR JUSTICE GRAY: You do not have to do it by going into the box yourself, you can do it by calling experts, as appears to be the Defendants' intention. But do not worry about the point about having gone by the board. I know what your case is. I am very well aware of that. MR IRVING: A case that is founded on documents is far better than a case based upon mere verbal allegations. MR JUSTICE GRAY: I see that. If I want to try and elicit more from your own expert witnesses when they come to give evidence about your own reputation and, indeed perhaps, about the campaign, well, to a limited extent, of course, you can do that. MR IRVING: What about the historical documents, my Lord? For example, in December 1942, on Friday, we were looking at the December 1942 document -- I am sure your Lordship remembers -- when Himmler sent a report to Hitler saying the 300,000 Jews shot as partisans, roughly speaking, and this is used as evidence against me, or against my . P-11 position. There is a similar document from the same month showing a conference between Himmler and Hitler where Hitler is authorising Himmler to sell Jews to foreigners for foreign currency which would indicate in the other direction that he is not hell bent on destroying every Jew that comes into his possession. How will I be able to submit documents like that to your Lordship's attention? MR JUSTICE GRAY: This is a document not in your discovery at the moment. MR IRVING: It is in the discovery. All these kinds of documents are in the discovery, but unless I -- I think there are over 2,000 documents in my discovery, many of them of many pages, and I am sure your Lordship will not have had time to consider them all. MR JUSTICE GRAY: No I do not pretend to. MR RAMPTON: Might I again, I am only trying to help, I have no doubt at all that Mr Irving is correct -- I have not looked at it myself but when he says he has disclosed these documents I have no doubt he has. What has happened is, of course, that the files, "bundles" the lawyers call them, which your Lordship has, are ours. Little or no material from Mr Irving's side, except in so far as we already had and want to use it. What has not happened in this case, I know not why, is there has not, I do not I think, been any request from Mr Irving to have files made up. . P-12 MR JUSTICE GRAY: I follow. MR RAMPTON: For submission to the court in the normal way. MR JUSTICE GRAY: Mr Irving is obviously free where they are relevant to say, well, there are other documents that put a different complexion on it. MR RAMPTON: I do not dispute this at all, what I am uncomfortable about as an advocate is, and I would I think if I were the judge in this case be uncomfortable about, is having documents coming at one with very little notice and at sort of random intervals. I would rather some hearing time or at some time when Mr Irving is not doing something else he could sit down and make a list of all the documents that he wants to refer to rebut our case against his integrity as an historian. Then we will have them made up into files, which would then become the - - MR JUSTICE GRAY: I think he would say I cannot really say in advance because it depends very much on what tack you adopt in cross-examination. He will hear what you say. MR RAMPTON: My cross-examination merely follows the scheme of my expert reports. There is nothing -- there is nothing -- there is no ambushing. It is all there. MR JUSTICE GRAY: No, I accept that. MR RAMPTON: What is more there were all those written requests for information that we served in October or early November. MR JUSTICE GRAY: Mr Irving, you hear what Mr Rampton says, the . P-13 problem is time. I mean, you are not going to have a day to sit down -- MR IRVING: I agree, I am looking at practicalities. MR JUSTICE GRAY: And do a list. I think the answer must to the extent you want to refer to documents you must be free to do so, but I am not inviting you to produce a sort of steady trickle of odd documents as we go along. MR IRVING: My tactics will be, my Lord, that I will take specific issues, as I intend to this morning for a very few minutes suggest on the basis of documents already in the bundle or otherwise in the discovery that my position is correct, and that the position which they have laboured to establish is incorrect. I was proposing to do that for two or three minutes this morning on two specific issues that we will come to later. MR JUSTICE GRAY: Yes, to the extent you want to introduce documents then I am not going to stop you. What I am very anxious to do is make sure we know where they are landing up. I am intending to put them all in the bundle called "J". It may be sensible if everybody else does the same, including those documents you produced I think on Thursday. But if you can give Mr Rampton advance notice of any documents that are not already in the bundles then that would be helpful. MR IRVING: I endeavour to do so, my Lord. MR JUSTICE GRAY: Now these dates for Professor Watt and so . P-14 on. I have no problem with any of them. MR IRVING: I have established each date with a view to providing sufficient time for adequate cross- examination and, of course, they are flexible to that extent. MR RAMPTON: The first one is this Thursday. MR IRVING: Professor Watt, yes. MR JUSTICE GRAY: Mr Rampton is still going to be cross-examining, that is what he is going to say. MR RAMPTON: I will still, but I do not mind my cross-examination being interrupted in the slightest. MR JUSTICE GRAY: No, it might in some ways be an advantage. I do not, like you, think there is going to be much cross-examination of these witnesses. MR RAMPTON: I do not even know what Professor Watt is going to say. MR JUSTICE GRAY: That is part of the point, is it not? Shall we proceed on the basis these dates are all acceptable. MR IRVING: Professor Watt and Sir John Keegan are appearing on subpoena. This brings up one minor point; Sir John Keegan's subpoena was dated for a different date than the date we proposed now to call on because -- MR JUSTICE GRAY: That is agreed, is it not? MR IRVING: It is agreed. If your Lordship would agree to amend the summons. MR JUSTICE GRAY: I am not sure I need formally to amend it. It is agreed and accepted -- . P-15 MR IRVING: -- Solicitors are very anxious that they should not be held to be in contempt. MR JUSTICE GRAY: I can say now they will not be, as long as he is here on February 7th at 10.30. You want to address the court on the Anne Frank diary entry and on Goebbels diary. MR IRVING: Yes, it is a little bundle of pages I gave you. You will be relieved to hear that I only want to draw attention to five or six passages in them. MR JUSTICE GRAY: Just pause a moment, would you, Mr Irving. What I am going to treat this as being, as your wishing as part of your evidence to amplify some of the answers you gave on Thursday. So I think it is best if you would do it from the witness box. MR IRVING: Very well, my Lord. MR JUSTICE GRAY: That may sound a bit of a quibble, but I think that is the right way of doing it. Is there anything else before you go back. MR IRVING: I think we have dealt with point 6 already, that is the point about Auschwitz. MR JUSTICE GRAY: Yes. Mr Rampton, there is nothing else you want to raise? MR RAMPTON: Not in this letter, no. MR JUSTICE GRAY: Or at all? MR RAMPTON: Yes, there is. I have another letter from Mr Irving. It came on Saturday. I do not know if your Lordship has it. . P-16 MR JUSTICE GRAY: I do not think I have. MR RAMPTON: I will do it, if I may, from memory. It looks like that, it has two paragraphs. A very small point on paragraph 1. Yes, of course, he can show it to people who would help him answer the point, or deal with the point. "I do not know about my friends", I suppose that means "helpers". That is a very small point. There is a more serious point in the second paragraph. The last sentence says: "Materials collected for the purposes of testing the witnesses' credibility and credentials will not be provided. If they are materials which have relevance to credit only, then that is perfectly correct, they need not be provided: If, however, they have relevance to the issues in the case then they must be provided. MR JUSTICE GRAY: Yes, Mr Irving, I think that is right as a matter of law. MR IRVING: Yes. MR JUSTICE GRAY: I do not know what you are talking about when you refer to these materials. MR IRVING: My Lord, I can be more specific. We have obviously a number of experts who are assisting me with advice. Some of them have submitted lengthy letters to me, others have submitted expertise to me in more a formal form, which is very clearly of a nature designed to test the credit of the witness Professor van Pelt. My . P-17 understanding of the law is that if it is designed to test his credit then I do not have disclose it. MR JUSTICE GRAY: That is right. MR IRVING: But it is very difficult to weed out from these reports what is a test as to credit and what is -- MR JUSTICE GRAY: If you have material which suggests that Professor van Pelt is wrong about -- MR IRVING: Specific issues. MR JUSTICE GRAY: Whatever it may be about maybe points he makes on the Leuchter report, something of that kind, then that plainly has to be disclosed. But if you have some sort of evidence suggesting that Professor van Pelt has an agenda of his own and has misconducted himself in some way as an expert, out of the context of this case, then I think you probably would not have to disclose that. That may not be a very clear guide to you -- MR IRVING: We will do so with the utmost reluctance, but if it is the law, then we will do so. But it is rather like playing poker with the other person having a mirror over your head. MR JUSTICE GRAY: The short answer is, if it goes to the accuracy of his observations as an expert, as to what happened at Auschwitz, then I think you ought to disclose it. If it is just prejudicing him as an expert in the general sense, then I think not. MR IRVING: We will do so within 24 hours in that case. . P-18
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