Archive/File: people/i/irving.david/libel.suit/transcripts/day007.11 Last-Modified: 2000/07/20 MR JUSTICE GRAY: But thinking of the evidence, which is not at the top of my mind at the moment, but thinking of the evidence that the defendants have adduced in relation to Auschwitz, one could put it into various categories, as indeed the Defendants do in their summary of case, it seems to me that most of what they are relying on was probably known to you, but if not known to you was certainly readily available to you; was it not? MR IRVING: I think that is very bold perception, my Lord. . P-90 MR JUSTICE GRAY: Well, you tell me, what -- MR IRVING: I would certainly challenge that. MR JUSTICE GRAY: -- categories of evidence you say you really have no knowledge of? MR IRVING: For example, the entire records in Moscow. I am not an Holocaust historian, my Lord. I thought I had brought this matter across to your Lordship satisfactorily that I am know as an historian and a biographer of the top Nazis and that the Holocaust is very much a section of that material. But one cannot, after all because one is writing about the atomic bomb learn nuclear physics. One would not be considered to be negligent that one had not become a Nobel Prize winning nuclear physicist before writing about the history of the atomic bomb, if I may say so. I am asking your Lordship to keep this negligent element before yourself and you say to yourself, this does not go to issues as pleaded, and this is just an attempt to bring in material for the newspapers, put it like that. MR JUSTICE GRAY: Let me ask you this question, and do not answer if you do not want to, but if I were to come to the conclusion that there is a whole range of formidable evidence of one kind and another. MR IRVING: Yes. MR JUSTICE GRAY: Camp officials, eyewitnesses, scientific evidence, evidence of construction at the gas chambers and the like; all of which was there, but you paid no . P-91 attention to it, is that something you would accept? Is that the way you put your case? That you went for broke on the Liechter Report. MR IRVING: It depends upon the degree of intensity which would have been appropriate. If I was intending to go on, for example, a BBC talk show and I was likely to be asked about Auschwitz should I therefore spend $5 million on sending researchers into the archives around the world? It is a degree of proportionality which comes into it, my Lord. I am sure your Lordship appreciates that point and bear it constantly before yourself. MR JUSTICE GRAY: Yes, but I am not sure you have really quite grasped the nettle of the question; is it your position that the Defendants really are not entitled to rely on the body of evidence that I have just listed for you because, although it was available you did not refer to it; you did not familiarize yourself with it? MR IRVING: I am not interested to hear Mr Rampton justify doing precisely that. MR JUSTICE GRAY: Well, I think he will find it difficult to do so unless you have made clear what your position in relation to these various categories of evidence is. If you are saying, "yes, I accept it is there and I simply did not attach any weight to it"; then he may say, "well, what is the point of calling the evidence?" That may not be right, but he may say that. That is why I am asking . P-92 you. I am trying to get you to come clean, as it were, what your stance is in relation to this evidence. MR IRVING: I am mortally wounded by the suggestion that I am not coming clean on this. MR JUSTICE GRAY: I did not mean that in any pejorative sense. You see because this is really what the argument is, is this evidence relevant? If you say, "well, I do not quarrel with it, I hear what you say about it all being there, but it just did not feature in my thinking about Auschwitz", well and good. MR IRVING: My Lord, what I have had to do, because Auschwitz has bulked so large in the Defendants' case I have to become something of an expert. I have had to get involved with consultants and discussed the issues with them and learn all sorts of things that I had no need to or desire to learn at the time I wrote these books, or at the time I made the utterances. I do not think that should have been necessary. I would have hoped that your Lordship would have ruled at a relatively early date in this trial -- and we are still at an early date in this trial that you will not hear evidence, my Lord, I would ask you to bear this in mind, that you will not hear evidence that goes only to the imputation of negligence and that you will only hear evidence that goes to the imputation of deceit. MR JUSTICE GRAY: But you see, you say it comes only into the category of negligence, but if you are making . P-93 pronouncements about Auschwitz in what the Defendants say are offensive terms of denying the gassing happened; are not the Defendants entitled to say, well, that really flies in the face of the evidence and anyone who is prepared to make those pronouncements is not just negligent, he is deliberately deceiving himself. MR IRVING: Very well. MR JUSTICE GRAY: I do not know whether that is the way they put the case or whether it is not. I think it may be. MR IRVING: I accept that but then the element of proportionality comes into it. MR JUSTICE GRAY: Yes. MR IRVING: To make that kind of pronouncement one is not then required to spend $5 million research, one is required to inform oneself to an adequate degree. But I still ask your Lordship to be on the alert every time that Mr Rampton either implies or actually says he ought to have known this, to say to yourself, yes, but on the basis of proportionality should he really have gone to that degree? Should he really have done that depth of research? Was he really expected to fly to Moscow and bang on the door and say "let me in"? MR JUSTICE GRAY: Yes, do not think I am not taking the point you are making. MR IRVING: Because that goes purely to the negligence issue and not the deceit issue, which is the only one they have . P-94 pleaded. My Lord, I must emphasise the fact they have not pleaded negligence. It was open to them to plead negligence at the time that they drew up their pleadings. I am not criticising learned counsel at all for the way they have drawn their pleadings, but if they intended to plead negligence the way that they have been hinting at throughout the first six days of this trial, then they should have pleaded it. MR JUSTICE GRAY: I want to take a bit of time on this because I think this may be really quite important to try and see where we are actually going, but just on Auschwitz and tell me if you are not able to deal with this, but just take the category of "Camp Officials" I cannot immediately put my ... MR IRVING: The eyewitnesses? MR JUSTICE GRAY: Well, I was thinking more of the camp official eyewitnesses, but take them, and I think there are probably about ten or maybe a dozen of them, something like that. MR IRVING: My Lord, we shall be -- MR JUSTICE GRAY: Now, the last thing we want to do is plough through each individual account if that really is not being to be necessary. Are you saying in relation to them, by way of an example, well, I appreciate that they have said what they are recorded as having said, but I did not know about it when I said what I said in Australia in . P-95 the 1980s or the States in the 1990s, and, therefore, the worst you can say is that I was negligent; is that the line you take in relation to that particular category of evidence? MR IRVING: Finely couched though your Lordship's words are I would not use them in precisely that form. I would say that at the time I made the utterances or wrote the books I was not informed to the degree that I am now am by virtue of having had to prepare for this case. In 1988 I saw certain evidence which you will be discussing later on, which obliged to me to change my mind about what I had accepted without having gone into it in any detail up to that point. As a result of this case I have now gone in much greater detail into the eyewitness statements by the camp officials to which your Lordship alluded. I still have less reason to accept them as being reliable than has the defence, and we shall go through these statements with forensic methods when the time comes to cross-examine Professor van Pelt. MR JUSTICE GRAY: Yes, well, I have certainly got your point. Shall I invite Mr Rampton to tell me -- MR IRVING: That may be useful. MR JUSTICE GRAY: What his position is. MR RAMPTON: Yes, my Lord, it is really very simple. We had these last days been dealing with the way in which Mr Irving on our case, distorts history, deliberately, . P-96 wilfully distorts history. In 1988, as your Lordship remembers, there was on trial in Canada a man called Zundel. He was on trial for something like inciting racial hatred by publishing an Holocaust denial book. Mr Irving went to Toronto to give evidence for Mr Zundell, in the course of that exercise he got to read -- I think he met Mr Liechter either then or earlier that year -- and he got to read the Liechter report. He came home and he held a press conference the following year, in which he said: "The buildings which we now identify as gas chambers in Auschwitz were not. I cannot accept that they had gas chambers there. There was no equipment there for killing people en masse. I am quite happy to nail my colours to the mast ... Jews cannot have been killed in gas chambers at Auschwitz". From there on, until 1993, which is the relevant date, he goes into public, into the public arena, and repeatedly makes utterances of that kind. Had he not done so he would not have appeared in the book which forms the subject of this libel action. One of the meanings which Mr Irving complains of, my Lord, this is paragraph (vii) on page 6 of the Statement of Claim: "That the plaintiff after attending Zundell's trial in 1988 in Toronto, having previously hovered on the brink now denies the murder by the Nazis of the Jews." That is Mr Irving's -- this is the most . P-97 elementary stage of the whole thing -- that in Mr Irving's case is a defamatory statement by Professor Lipstadt and Penguin Books, who published the book. That alone would allow as the defence -- the Lucas-Box particulars of the defence indicate that they will do -- that alone would allow the Defendants if they wished to do so to prove that he was wrong as a matter of fact. That is paragraph 6.1 of the Lucas-Box on page 2 of the defence, that the plaintiff has on numerous occasions denied the Holocaust, the deliberate planned extermination of Europe's Jewish population by the Nazis and denied -- MR JUSTICE GRAY: Well, I have thought about that, because I do not think either the meaning you have just cited from the statement of claim, or paragraph 6.1 of the Lucas-Box, really are defamatory meanings at all. MR RAMPTON: That may well be, but as I say that is the elementary -- that is stage one. As the pleadings stand I could do it. I do not, as your Lordship knows, put the case like that. MR JUSTICE GRAY: No.
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