Archive/File: people/i/irving.david/libel.suit/transcripts/day018.01 Last-Modified: 2000/07/24 IN THE HIGH COURT OF JUSTICE 1996 I. No. 113 QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London Thursday, 10th February 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 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 EIGHTEEN . P-1 (Day 18 - Thursday, 10th February 2000. 10.30 a.m.) MR JUSTICE GRAY: May it please the court. Two or three minor housekeeping matters. MR JUSTICE GRAY: Yes. MR IRVING: Your Lordship requested yesterday or the day before yesterday, you expressed an interest in that remark by Hans Frank at the Nuremberg trial where he said that he had discussed it with the Fuhrer on February 2nd 1944. Your Lordship said you would like to see the passage concerned. That is the top document in the heap which I have left your Lordship there. MR JUSTICE GRAY: Thank you. MR IRVING: In order that your Lordship can see the passage concerned, I have put it into bold face, and it is about 10 pages in, I think. It is easier to find -- it is three pages from the end, my Lord. MR JUSTICE GRAY: Yes, thank you. MR RAMPTON: Maybe your Lordship has something I have not. MR IRVING: It is there. MR RAMPTON: Thank you very much. MR JUSTICE GRAY: It is in bold. MR IRVING: I have put in bold, that particular passage. The entire document is of interest and it may well be that Mr Rampton will wish to ask questions about it. It is Hans Frank, who is the Governor General, which is not . P-2 where Auschwitz was situated, of course, the Governor General, but he is relating his own experiences and how he learned, first of all, of the rumours from radio broadcasts, which may seem extraordinary and how he then went to discuss them with Hitler. MR JUSTICE GRAY: Yes, thank you. MR IRVING: The second point is ---- MR JUSTICE GRAY: Sorry to interrupt you, but where shall we put this? MR IRVING: Miss Rogers will, undoubtedly, have a suggestion to make of a proper nature. MR JUSTICE GRAY: Yes. She is in charge. MR RAMPTON: Probably in the J file somewhere or other. At the back of tab 7 of L1(iv) for the present. MR JUSTICE GRAY: Hang on, this is, in effect, an Auschwitz document. MR IRVING: It is. MR RAMPTON: Is it? MR JUSTICE GRAY: So we do not want to put it in a ---- MR RAMPTON: I do not think it is an Auschwitz document. MR IRVING: It is. It goes to Auschwitz and Hitler's knowledge of Auschwitz. It is actually the question of the final link. Your Lordship may read this document either way, of course. You may hold it against me, in fact, that Frank is discussing this with Hitler. MR JUSTICE GRAY: I am not going to try to absorb it now . P-3 because it maybe you will want to pick this up with Professor Evans. MR RAMPTON: It is Hitler knowledge, really, because it reflects back on the suggestion that Frank was told by Hitler ---- MR IRVING: I agree. MR RAMPTON: --- or one of Hitler's people on 12th December 1941. MR JUSTICE GRAY: So you stick with L as being the appropriate place? MR RAMPTON: Yes, I would stick with L for the moment. L1, tab 8, I am now told. MR JUSTICE GRAY: Of 8, you are saying? MR RAMPTON: If there is a tab 8. MR JUSTICE GRAY: I know we are taking time on this, but it is really important that one has the documents in some sort of order. Yes, Mr Irving. Next one? MR IRVING: The next point is that yesterday evening at about 8.30 p.m. there was delivered to me by courier from the Defendants a very large bundle of papers once again for which Mr Rampton would say, I attach no blame whatsoever to the other parties; obviously, this is an action where that kind of thing happens. MR JUSTICE GRAY: Well, I am not so sure about that, but I will guard my tongue at the moment. MR IRVING: Basically, it was answers to questions which I . P-4 had asked of today's witness, Professor Evans, on January 2nd and January 3rd this year, around about that date, and here we are five weeks later; they have now delivered a response of probably 150, something like that, pages. MR JUSTICE GRAY: Sorry. You say you asked questions of Professor Evans on a previous occasion? MR RAMPTON: Written questions. MR JUSTICE GRAY: I do not think I have seen that. MR RAMPTON: It is perfectly all right within the rules. MR IRVING: Within the rules and with the aim of speeding things up. MR JUSTICE GRAY: I do not think I have seen the product of your questions. MR IRVING: Well, the product was delivered to me last night. It covers really the first 200 pages of his expert report which means I cannot today address myself specifically to those pages of his report. It would be a nonsense. MR RAMPTON: That is perfectly reasonable. In fact, the answers run only to six pages, I think. MR IRVING: Yes. MR RAMPTON: The rest is what you might call supporting documentation. MR IRVING: Very well. MR JUSTICE GRAY: But why has this come ---- MR RAMPTON: Because Professor ---- MR JUSTICE GRAY: --- within hours of Professor Evans getting . P-5 into the witness box. MR RAMPTON: Because Professor Evans is a busy man and he has only just answered them. I cannot answer them for him. MR JUSTICE GRAY: Well, that, of course, I understand. MR IRVING: I make no criticism of that, my Lord. Obviously, we both have our professional lives to lead, but for this reason it would be pointless for me to cross-examine him on those pages as I certainly shall. MR RAMPTON: That I accept. MR IRVING: Because he may very well have answered the matters in the meantime. But today I was going to discuss more general matters with him. We were going to set the scene as far as we possibly can. MR JUSTICE GRAY: Yes, but may I just say something about your cross-examination? I have spent many hours, to put it no higher, on day 16 and day 17 which is, basically, your cross-examination of Professor Browning. MR IRVING: Yes. MR JUSTICE GRAY: Your questions, if I may say so, are clear, almost always to the point, but what I would find helpful is if you would usually make a point of, if you can, directing me to the document that you are cross-examining on, or invite the Defendants to direct me to the document you are cross-examining on, because you probably understand when I go through the transcript (and I am much less knowledgeable than you and, indeed, than the . P-6 Defendants), I do not always find it very easy to follow the drift of the questioning unless I know what the document says. MR IRVING: My Lord, I will certainly do so in the written text of my summing up which I shall deliver to your Lordship as a written document as well as spoken. MR JUSTICE GRAY: But, remember, I am trying to follow this and digest it as we go along from the transcript so that if you can ---- MR IRVING: Your Lordship will have noticed a disparity --- - MR JUSTICE GRAY: --- accommodate? MR IRVING: --- of effort between the man power on the Defence side and the man power on the Claimants' side of this case, and I do what I can. MR JUSTICE GRAY: I know. I am really inviting the Defendants to come to my assistance during your cross-examination. The trouble is -- I have said it before, I will say it again -- that the documents on certain aspects of this case are scattered amongst different files, mostly untranslated, and it does not make life any easier. I say that with some feeling. MR RAMPTON: I am not sure if I see that as a rebuke or not. It is a fact of life, however. To make your Lordship's task easier because, after all, at the end of the case your Lordship is going to have a write a judgment, we will perhaps, as it were, in conference in open court with your . P-7 Lordship try to put together -- we have for some subjects already done it, we did it for Reichskristallnacht, we have done it for Dresden and some other things. MR JUSTICE GRAY: They are fine, those two topics. MR RAMPTON: But there are, obviously, a number of key documents which your Lordship rightly says and, unsurprisingly, since the bundles have not been agreed in the usual way, but are simply the experts' references, they are scattered all over the place, we need to draw them together. When we have done that, I think we need some help from your Lordship about which ones you would like us to translate. MR JUSTICE GRAY: Yes. I agree with all of that, but just looking ahead, for example on Longerich -- it is too late on Professor Evans and it may not be a problem with Evans -- it would be helpful to perhaps, prepare, a little bundle in advance. MR RAMPTON: I agree, yes. MR JUSTICE GRAY: It may be you have done all this already, but if you have not, do you think that could be considered? MR RAMPTON: My working is different. I have taken all the documents already from different experts for use in cross-examination, which is a slightly different exercise. MR JUSTICE GRAY: Yes. I will have to leave it to you, but bear in mind I am not rebuking so much as just expressing a real problem. . P-8 MR RAMPTON: I understand it as a plea for help. MR JUSTICE GRAY: In a way, it is exactly that. MR RAMPTON: Which I fully understand. So what we will try to do, if we can, is get a Longerich bundle together, but it may well include some documents from other places. MR JUSTICE GRAY: Yes. Mr Irving, there are some other documents here. Should I look at those now or are they for later? MR IRVING: No. I will draw your attention to them when the time comes, but I am going to draw your attention or remind your Lordship of what we call the Kinna document, K-I-N-N-A, which was a late arrival. I am almost tempted to say it is a glamorous arrival. It arrived late from an anonymous source, your Lordship will remember, and your Lordship asked the Defence to take two weeks to find out where it came from. They have know provided that information to me last night. It is a document which I regard as suspect inasmuch as it comes from a 1960's Polish publication, what we would call a blue book and the Germans a white book an the Nazis a brown book, I suppose, or the East Germans. It is that kind of publication. I make no criticism of that. I am not going to attack the integrity of the document because I am not in position to. But they have also produced in support of the document the testimony of the man who signed it, as I understand it . P-9 taken in. MR JUSTICE GRAY: Can we first of all go to this document? MR RAMPTON: Yes, my Lord. It was, I think produced ---- MR JUSTICE GRAY: I remember it.
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