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Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day031.03


Archive/File: people/i/irving.david/libel.suit/transcripts/day031.03
Last-Modified: 2000/07/25

       MR JUSTICE GRAY:  I hear what you say.  My understanding was
            that, when we were discussing closing speeches, what was
            proposed was that there should be an exchange of written
            speeches, written notes of what was going to be said by
            way of speeches or closing submissions.  That date slipped
            and I totally understand why it slipped, but I had thought
            that the plan was that you would spend today, and Mr

                                 .          17


             Rampton would spend tomorrow, elaborating on what you
             provided in writing.  If you do not want to, there is no
             reason why you should.  That is what I recall as having
             been the plan.  Mr Rampton, am I wrong about that?

        MR RAMPTON:  I think that was what I might call stage one.
             I think that and again I am doing it only from memory, my
             recollection was on the last hearing day, which date
             I forget, what in fact emerged or evolved is on written
             submissions each side would make a shorter, much shorter,
            oral submission.  I have to go first as Defendant, a
            strange procedure it is, but there it is, that is what
            happens.  I have to go first and I was given the first
            half of tomorrow and Mr Irving, I think, the second half.
            That is how I had read the transcript.

       MR IRVING:  That is certainly how I understood it also, my Lord.

       MR JUSTICE GRAY:  If you understood it that way.  I am rather
            puzzled why we have all turned up today.

       MR RAMPTON:  I agree; we thought, like your Lordship, first,
            that Mr Irving might have something to say about our long
            written submission, but I expect he has not had time to
            read it.  Second, and more particularly, there was going
            to be an oral submission about the admissibility of his
            file E, his global file.  He now says that he has made
            that, in effect, in writing.  I am quite content with that
            and probably I shall not even respond to it; Miss Rogers


                                 .          18


             might write a note about the law.

        MR IRVING:  I think the way I have done it in the closing
             statement is the proper way to do it, my Lord.  That gives
             it the proper way and it avoids going through the very
             lengthy file of documents that we had.

        MR JUSTICE GRAY:  Just explain to me what you both thought was
             going to be discussed then.

        MR IRVING:  I had thought, and I am sure Mr Rampton was of the
             same impression, that your Lordship was going put to us
            one or two questions concerning the documents that we have
            supplied to your Lordship over the weekend, namely the
            oral statements in their then existing state.

       MR JUSTICE GRAY:  How can I put questions to you in relation to
            a document which I received from you this morning?

       MR IRVING:  You have certainly received the statement from
            Mr Rampton and I think both of us -- this is certainly the
            result of conversations I had with the instructing
            solicitors over the weekend -- this is what we anticipated
            would be happening today, that your Lordship would be
            clarifying final matters, dotting the remaining Is and Ts
            before we reassembled tomorrow for the oral submissions.

       MR JUSTICE GRAY:  Well, I will be measured in what I say, but
            I had expected to get a little bit of assistance really
            from both sides.  But if you are both saying that you
            stand by what you submitted to me in writing and you make
            your public statements tomorrow, which I do not think will


                                 .          19

             help me particularly in the task that I have, well, so be
             it, if that is what you are both telling me.

        MR RAMPTON:  That is my understanding of what was to happen.
             I had suggested to your Lordship, and I believe your
             Lordship agreed, that this was a peculiar case, and I do
             not mean that in any sinister way, but it is a case which
             has some peculiar public importance, legitimate public
             importance.  Your Lordship took the view, and I believe
             rightly, that there should be, unusually for a case tried
            by judge alone, a degree of oral statement at the end of the case.

                      My recollection is -- somebody is trying to find
            the transcript of day 30 -- that one of the things that
            was raised when we returned to court on that day, which
            I think was probably a Monday, was this question of how
            those oral submissions should be structured.  I think what
            happened was that your Lordship said either yesterday or
            today there should be any submissions made, if there were
            any, about the long written submissions which your
            Lordship already has.

       MR JUSTICE GRAY:  Yes.

       MR RAMPTON:  And that on Wednesday the day would be shared with
            the much shorter oral summaries.

       MR JUSTICE GRAY:  That bit I have no problem with.  I took
            the view that was an appropriate course to take in the
            unusual circumstances of this case.  I am really thinking


                                 .          20



             more now about what I had got the impression was going to
             happen, either today or, indeed, yesterday or perhaps part
             of tomorrow, which is perhaps some assistance, oral
             assistance, in relation to the issues which I have got to
             decide, but I, obviously, had misunderstood what you both
             had in mind.

        MR IRVING:  My Lord, I make such submissions in the opening
             paragraphs or opening pages of my closing statement, the
             kind of way that I believe your Lordship should think.

       MR JUSTICE GRAY:  Let me explain why I am a bit unhappy about
            this.  Just to take an example at random, and this is at
            random, Goebbels diary entry for 22nd November 1941 --
            Mr Irving, this is from your submissions -- well, you make
            your case in two paragraphs about that.  Well, that is
            fine if that is where you want to leave it.

       MR IRVING:  My Lord, your Lordship will ----

       MR JUSTICE GRAY:  I am just bit a surprised.

       MR IRVING:  Your Lordship will find that on several of the
            issues that your Lordship included in your list I have
            made no submission whatever because I am confident to rest
            on what I stated in the witness stand.  There has been
            enough paper generated by this case already, and I do not
            think your Lordship will pay overmuch attention to them.

       MR JUSTICE GRAY:  Well...

       MR IRVING:  In that particular entry that your Lordship is
            referring to, I think I brought out the salient points.

                                 .          21


        MR RAMPTON:  So far as we are concerned, my Lord, we delivered
             to your Lordship, I think, I hope reasonably early
             yesterday morning, /10ths of what we had written.  It is
             although bulky for somebody who has a familiarity with the
             case such as your Lordship, it does not actually take very
             long to read.

        MR JUSTICE GRAY:  No, I have read it.

        MR RAMPTON:  Good.  Now there are some few additional pages.

        MR JUSTICE GRAY:  Those I have not read because they only
            arrived this morning.

       MR RAMPTON:  What we have done is to follow as faithfully as
            possible the written scheme which your Lordship drafted
            and, as also your Lordship indicated we should, we have at
            the beginning of each section written an introductory
            passage in most cases.

                      I have no comment to make about what we have
            said, I hardly could since I am one of the principal
            authors of it.  Unless it is unclear or wrong, I would not
            at this stage expect to have to say anything more about
            it.  I had supposed that it was possible that either your
            Lordship or Mr Irving might have some questions or some
            objections to some part of it.  If not, then I have
            nothing more to say about it.  I have not anything at all
            to say about Mr Irving's submission (a) because we did not
            have the whole of it when it arrived, I do not know when,
            last night or early this morning, I do not know, and we


                                 .          22


             did not have the whole of it, and (b) I have not read it
             in any way because I have not had time.  We still have not
             got the whole of it, no.

        MR JUSTICE GRAY:  Well, let us not waste more time.  Both sides
             are taking the position they do not want to add anything
             to what they have submitted in writing and they do not
             want to say anything about the other side's submission.

        MR RAMPTON:  All that I shall do tomorrow is summarize, in
             effect, and largely not for your Lordship, obviously, for
            the wider public the effect of this fat file because I do
            not suppose for a moment that everybody who might be
            interested is going to read that.

       MR IRVING:  My Lord, I was going by past experience when
            I prepared this.  In 1970, the action I was involved in
            then, Mr David Hurst made his learned submissions to the
            court in his closing speeches which lasted two or three
            hours then Mr Colin Duncan replied on my behalf.

       MR JUSTICE GRAY:  If I may say so, that was rather different.
            That was a jury action, as I remember, and nobody had to
            make a reasoned judgment at the end of it.

                      Well, that concludes today's business and I do
            apologise to the members of public who came perhaps
            expecting they were going to listen to something today,
            but that is my expectation too and we were all wrong.

       MR RAMPTON:  We had tried to deal with that.  I think, in fact,
            Miss Rogers explained this to your Lordship's clerk, and


                                 .          23


             I am not blaming him if it did not get through at all.  We
             had realized that today might be a non-event which,
             largely speaking, it has proved to be, and we knew that,
             as one might say, the big event was going to be tomorrow,
             so what we did was we actually put out a press release,
             not only in this country, but in America, in the hope that
             people would be deterred from coming today and would know
             that tomorrow was the right day to attend.

        MR JUSTICE GRAY:  I remember the problem about having to revise
            the date when you were going to make your, as it were,
            public statements, if I can call them that.  The message
            that I am afraid I certainly had not received was that
            today was going to be a non-event because there were not
            going to be any final speeches on either side for my
            benefit as opposed for public consumption.  I am really
            surprised, I am bound to say, but there we are.

       MR RAMPTON:  I would have had something, might have had
            something, to say about Mr Irving's written submission had
            I had it in time and had I read it.  I do not know.  It
            may be that when we have read it, we may have something to
            say.  I rather doubt it.  Mr Irving has had the
            opportunity of going through what we have written.
            Apparently, he has nothing to say about it at this stage.

       MR IRVING:  I opened it here in the courtroom this morning.  My
            Lord, can I ask one technical question?  Would it assist
            your Lordship if I provided my closing statement on disk?


                                 .          24


        MR JUSTICE GRAY:  No, I think I am very happy with it in hard
             copy.  Thank you very much.

        MR IRVING:  If the order of events was different, I would be
             quite happy to have started with my closing speech today,
             but the order of events is that the Defendant has the
             word, the penultimate word, and I do not think probably we
             should disturb that.

        MR RAMPTON:  The only other thing which I can add, which might
             be helpful, is that Miss Rogers says, and she must be
            believed, that, if your Lordship has any difficulty
            finding any of the references, ours is, I think, now fully
            referenced and should not a problem, but one knows how it
            is.  Documents do disappear, it is a fact of life.  Or,
            more particularly perhaps, if a document is referred to in
            Mr Irving's closing submission, we will give every
            assistance to your Lordship in trying to find them during
            the course of today.

       MR JUSTICE GRAY:  Yes.  I do not know what you say in some of
            your sections, but one particular aspect which I think I
            did mention I thought was important and required thought,
            and I certainly had hoped to have some assistance in
            relation to it, was what I think in the end we called
            assessing Mr Irving as an historian.  I do not what you
            say in that section, but I think I noticed there is not a
            section at all.  You said nothing on that.

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