Archive/File: people/i/irving.david/libel.suit/transcripts/day023.01
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

                                 Monday, 21st 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 TWENTY-THREE
    
       .          1



(Day 23 Monday,  21st February 2000.  10.30 a.m.)

     MR JUSTICE GRAY:  Mr Irving, I just want to say something to
     Mr Rampton, if I may, first off.  Do you think it would be
     possible, Mr Rampton, to get an index prepared for these
     files that have come into existence during the course of
     the trial?  I mean J.

     MR RAMPTON:  In hand ----

     MR JUSTICE GRAY:  Good.

    MR RAMPTON:  --- already.

    MR JUSTICE GRAY:  Because I am finding with the
transcript so often you cannot actually discover where it is from the
    transcript and then you have to wade through.

    MR RAMPTON:  Yes, I quite agree, but that is in hand.  Slowly a
         process is happening whereby each topic will have a
         separate distilled file.

    MR JUSTICE GRAY:  I am glad it is in hand.  Thank you very much.

    MR RAMPTON:  I have nearly finished the one on history and then
         there will be others.

    MR JUSTICE GRAY:  Yes, Mr Irving.

    MR IRVING:  May it please the court.  My Lord, three minor
         points to deal with before I resume the cross-examination
         of Professor Evans.  First of all, the Defendants provided
         to me, or served on me at about 6.30, in other words after
         close of business on Friday, a 24-page glossary of



                                 .          2


         meanings of German words prepared by a Dr Longerich, who
         is going to be the next expert witness.  I am not very
         happy about this way of doing things.  They have been
         working on this case now for 18 months or more, and to
         have quite an important document like that provided to me
         at literally the last moment is awkward.

     R JUSTICE GRAY:  I sympathise with that because you have quite
         a lot on your plate already but, having said that, I think
         I would probably be able to guess at the contents of a
        good deal of it because we have been through a lot in the
        evidence, have we not, like Ausrotten and so on.

    MR IRVING:  It is perfectly proper that they should served such
    a glossary as that because experts are allowed to give
    evidence on the meaning of foreign words, as I understand
    it, and that is what this largely is. It is looking at
    various words in various documents partly pre-empting what
    I was about to say anyway.  I am unhappy about the
    document being put to your Lordship in that form without
    your Lordship realising that it has only just been put to
    me.  It is rather like the catalogue of extracts, a very
    handy reference form for your Lordship, rather like a
    printed index.  I am just unhappy that it has been done at
    this very late moment.

    MR JUSTICE GRAY:  I will certainly bear that in mind.

    MR. RAMPTON:  Your Lordship has not got one, so can I pass one
    up.  It is really a most helpful document, I find.  That


                                 .          3



     is in English.  The original was in German.  It is
     relatively uncontroversial, I would have thought.
     MR JUSTICE GRAY:  It may be controversial, but nothing new?

     MR RAMPTON:  There is nothing new in it.  It is a review of the
     usage of certain key words.  That is all it is.

     MR JUSTICE GRAY:  As I understand it really, there is pretty
     much agreement that a lot of these words are either in
     themselves equivocal, they can mean something sinister or
     not, or in many cases the words are innocent, ostensibly
    innocent words are used to camouflage a sinister meaning.
    So in the end maybe not a great deal turns on it.

    MR IRVING:  It may be helpful in some respects, it may be
    contentious in others, my Lord.  That is all I want to say
    before I actually start the cross-examination on that.  It
    is neither fish nor fowl again.  Like so much that has
    been done in this case, it is neither the expert report
    which should have been served last August, nor is it
    something being put to the witness in the witness box.  It
    is kind of halfway in between.

    MR JUSTICE GRAY:  Can I tell you, I will bear that in mind when
    we get to it.  Mr Rampton, shall I put this into Longerich?

    MR RAMPTON:  Yes, would your Lordship put it in the front of
    Longerich, I would recommend.

    MR JUSTICE GRAY:  Yes.

    MR IRVING:  My Lord, the next point is of rather more


                                 .          4



     substance.  This concerns the matter of the expert reports
     which have been withdrawn.  I am sorry, they have not been
     withdrawn, but on which no cross-examination will be possible.

     MR JUSTICE GRAY:  Yes.

     MR IRVING:  Your Lordship and I have both raised our eyebrows
     over the possibility of putting in reports without the
     witnesses to back them up as far as expert reports are
     concerned.  I am going to invite your Lordship to direct
    that the Defendants should produce a skeleton, in effect,
    setting out the authorities and statutes on which they
    rely, if they intend to put in the reports without the
    experts.  I think that would be perfectly proper to enable
    me to argue the matter at a later date.

    MR JUSTICE GRAY:  Yes.  I think I said, when Mr Rampton
    indicated that that was what they were intending to do,
    that it was the first time I had come across this being
    done in relation to experts' reports.  I think it is
    reasonable that, subject to what Mr Rampton may wish to
    say, you should have chapter and verse presented to you
    for an entitlement to take that course with an expert, but
    I will hear what Mr Rampton says obviously.

    MR IRVING:  Obviously, if I am not going to be required to
    present evidence or to impugn those experts reports,
    I should be told as early as possible because that will
    halt a major amount of the work that is still ahead of me.


                                 .          5



     MR JUSTICE GRAY:  I do not think anyone is suggesting you are
     not entitled to impugn their reports by evidence or in
     other ways.  The question you are really on is whether
     they are entitled to adduce the experts' reports under the
     Civil Evidence Act or not.

     MR RAMPTON:  I have to say, I do not think it is an enormous
     point.  If we think we want to rely to any extent on the
     actual contents of the reports of the witnesses that we
     are not calling in person, then naturally we will have to
     persuade your Lordship that we are entitled to do that.
     Presently, my view is that almost everything that I need
     for cross-examination of this subject and for proof is to
     be found in Mr Irving's own words and in documents sent to
     him.

     MR JUSTICE GRAY:  Yes, but if you are going to rely on the
     uncalled experts, then it may not take very long because
     I suspect the answer is that the language of the Act does
     not distinguish between expert and lay witnesses.

    MR RAMPTON:  I am almost certain it does not, but I am not
    going to commit myself.

    MR JUSTICE GRAY:  There may be some authority on it.  It does
    strike me as slightly unusual.

    MR RAMPTON:  I have not come across it before but that does not
    mean it cannot be done .

    MR IRVING:  It does certainly put me at a disadvantage, not
    knowing precisely what they are intending to do.


                                 .          6



     MR JUSTICE GRAY:  I think we know what they are intending to
     do.  There is a question whether they are entitled to do it.

     MR IRVING:  Mr Rampton, as I understood, has just said that he
     might rely on parts and he might not, which leaves us
     precisely where we were when I into court this morning.
     What I am really asking is that your Lordship should
     direct them, if they intend to rely on part, they must
     indicate what statutes and authorities they are going to
     rely on to open that particular door.

    MR JUSTICE GRAY:  I think I will be a bit more specific about
    it.  I think it would be helpful to have it in writing briefly.

    MR RAMPTON:  Yes.

    MR JUSTICE GRAY:  I think there must be a brief written
    submission lodged by -- are we going to finish Professor
    Evans today?

    MR RAMPTON:  Professor Evans today -- can I say a little bit
    about how I see things going?  Your Lordship may or may
    not agree with me, I do not know.  Professor Evans I hope
    will finish today.  Then there will be Dr Longerich
    tomorrow.  I hope that he will finish either tomorrow or
    Wednesday.  Then comes the question what happens next.
    There is a vast amount of material in part generated by
    what one might call the history of Mr Irving's own
    activities in these areas.


                                 .          7



     What Miss Rogers and I and others have been
     doing is to try and reduce all that vast amount of
     material to two files.  Those files themselves are quite
     fat.  First, I would not want to cross-examine Mr Irving
     on those files without his having seen them, and I do
     believe that the more time he could have to absorb - - it
     is all material which is in the wider range of files
     already.  There is nothing new in it, but it has all been
     pulled together.  In front of each section the intention
     is to have a little summary of what each section contains,
     which Miss Rogers has been doing with help.

    MR JUSTICE GRAY:  These are the people he has associated with,
    is that right?

    MR RAMPTON:  Yes, the people he has associated with,
    organizations and individuals.

    MR JUSTICE GRAY:  Yes.

    MR RAMPTON:  I began to read it over the weekend and it will be
    an extremely valuable set of documents.  In the end, it
    will cut things down.  My tentative proposal would be
    that, when Dr Longerich has finished, I would have some
    questions of Mr Irving in cross-examination on history,
    but I would leave that association cross-examination until
    the following Monday.  Then, when that was finished, which
    would take maybe half a day or a day, I would then call
    Professor Funke.

    MR JUSTICE GRAY:  You are, effectively, suggesting that


                                 .          8



     Wednesday onwards should be time for Mr Irving to digest
     these files?

     MR RAMPTON:  Probably Thursday onwards because I will have some
     cross-examination.  A combination of Dr Longerich and my
     further cross-examination on history should get us
     probably through all or most of Wednesday.  Then what I am
     proposing is we should take the last two days of this week
     off so that Mr Irving can read these files, which he
     should get by, I hope, tomorrow night.

    MR JUSTICE GRAY:  Yes.

    MR RAMPTON:  If he says he cannot do it in the time, then he
    will say so and your Lordship will hear what he has to
    say.

    MR JUSTICE GRAY:  Can we just revert to the written
    submissions?  I think close of business tomorrow for the
    written submissions on entitlement not to call the experts
    but to rely on their evidence.

    MR RAMPTON:  I do not think it will take very long, I may be
    wrong.  The new edition of Phippson has just come out, so
    I can have a look in that.

    MR JUSTICE GRAY:  Say close of business tomorrow for a short
    note of the submissions.

    MR RAMPTON:  Yes.

    MR JUSTICE GRAY:  So you will get it hopefully sometime towards
    the end of tomorrow.  Mr Irving what about the suggestion
    Mr Rampton has just made about the way in which we deal


                                 .          9



     with the rest of the evidence?  I am not going to do
     anything if you have sensible objections to it.

     MR IRVING:  I have no objection to that, my Lord.  The
     timetable sounds very sound.  If I was to utter a wish and
     I know my wishes count for very little in this court room,
     it would be that one of the spare days should be put
     before Dr Longerich rather than after, to able me to take
     Longerich probably advised, although I am prepared for him
     and, of course, I have read his entire report and have
     prepared a large bundle of material, which would in effect
     being tomorrow being free and Longerich being called on
     the following day.

    MR RAMPTON:  I embrace that enthusiasm, if I may say so.  It
    would make our task in completing these files a lot easier
    if we did it that way.  I do not any longer have to do any
    preparation for Dr Longerich, except that that will also
    give me the opportunity to finish the history file.

    Mr Irving certainly will need that and, if he can get it
    by close of play tonight, or even lunch time tomorrow,
    that will help.

    MR JUSTICE GRAY:  Yes, I am happy to do that, providing that we
    have the bundles available so that tomorrow can be used
    looking through your new material.  I can use tomorrow.

Home ·  Site Map ·  What's New? ·  Search Nizkor