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Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day032.18


Archive/File: people/i/irving.david/libel.suit/transcripts/day032.18
Last-Modified: 2000/07/25

   MR IRVING:  I am not seriously worried about it because I am
        sure that your Lordship will accept what I said about the meaning.

   MR JUSTICE GRAY:  Do you mind if I ask Mr Rampton what the

.          P-211

        explanation of----

   MR RAMPTON:  I do not see it that any criticism at all can be made ----

   MR JUSTICE GRAY:  When was Dr Aaron Reich asked the question?

   MR RAMPTON:  Where is that, my Lord?

   MR JUSTICE GRAY:  It is paragraph numbered 4 on the second page.

   MR RAMPTON:  I think that, unless I have completely
        misunderstood this clip of papers, I confess I have not
        paid it a terrific lot of attention recently, there is,
        I think, actually a page of the little clip showing that a
        fax was sent or received -- I can see.  It has my own fax
        number right at the top of it so I think it is what
        Dr Longerich says he sent from my chambers.  It looks like
        16.48 on Friday, but unfortunately I cannot read it.

   MR JUSTICE GRAY:  That was the problem I had which is why
        I asked when it had been sent.  Leave aside when it was
        sent.  What was the answer?

   MR RAMPTON:  I do not know when it was sent.

   MR JUSTICE GRAY:  Sorry, what was the answer from Aaron Reich?

   MR RAMPTON:  There was one in the Washington archive as well.
        The reply says, whatever its date may be -- I can see it
        is 10th March.  It is from somebody called Anna Row.  She
        is writing to both Aaron Reich, who I think might be in
        New York, I really do not know, and to Dr Longerich.  What
        she says is: "After some searching and help from Jurgen,

.          P-212

        we were able to find a copy of the document in question.
        The citation in Moscow is, according to the two records"
        etc. etc., and gives the reference.  "If a fax copy is
        desired we can send it along".

   MR JUSTICE GRAY:  I follow all that and, as I understand it,
        not making too much of a meal of it all, there are two
        copies of this document, one in Moscow and another in
        Germany, the German copy having been provided from
        Moscow.  That may or may not be satisfactory, but what
        I was really concerned to know is what attempts, if any,
        have been made to discover what other documents were in
        the same file, because I think the request was not an
        unreasonable one, that the other documents in the file
        might cast some light on the significance of Muller.

   MR RAMPTON:  I simply do not know.  If that is not addressed in
        Dr Longerich's note, I cannot give an answer about it
        because I was not a party to it.

   MR JUSTICE GRAY:  That was one of the things that I think
        I suggested on day 30 or day 31, I cannot remember,
        Mr Irving should be given an answer to.

   MR RAMPTON:  Plainly, I would submit, the position must be
        this.  The reason why, not including the November 1941
        document, Mr Irving tendered the other Schlegelberger
        documents is that, on one view of its dating, the other
        documents might be of some relevance.  I assume -- this
        is an assumption -- that a distinguished and respectable

.          P-213

        historian like Dr Longerich would not produce a single
        document from a file if there were other surrounding
        documents which, to his knowledge, had a bearing on its
        interpretation.

   MR JUSTICE GRAY:  Yes, but he does not say so, that is the
        problem.  He does not say that he has looked, or tried to
        look and failed.

   MR RAMPTON:  In any event, since Mr Irving accepts the
        authenticity of the document, the fact that there are not
        any other documents around it leads nowhere.

   MR JUSTICE GRAY:  We do not even know that, do we?  We do not
        know whether there are other documents in the same file.

   MR RAMPTON:  There might be a source, I do not know.  In fact,
        I think I may have been guilty of not reading the message
        carefully enough.  I read paragraph 1 of Dr Longerich's
        note which was prepared yesterday:  "I am familiar with
        this document.  A copy is available in the archival
        collection of the Zentralstelle in Ludwigsburg.  This is a
        collection of documents which was handed over by the
        Soviet authorities in 1969 to the Federal Republic".  It
        begs the question, I interpose there, how on earth it is
        that Mr Irving has never seen it.  It has been there since
        1969.  "The document is accompanied by a covering page
        with an archival reference to the file where the original
        is kept 500.1.25.  This is an archival reference from the
        Soviet archive in Moscow.  Fons" -- whatever that

.          P-214

        means -- "security police and SD, part 1 of the
        collection, file 25.  I was in Moscow", says Dr Longerich
        "in 1992 for four weeks, and I looked at documents from
        this fons extensively.  At the moment I cannot remember
        whether I saw the original of this document during my stay
        in Moscow, but I kept notes about this day and could
        reconstruct what I saw there.  The notes are at the moment
        in Munich".  That plainly does not suggest that he
        believes that there are any other relevant documents in that file.

   MR JUSTICE GRAY:  It does not say one way or the other.  He
        says he cannot remember.  It probably is a point of
        absolutely no significance but, since it is something that
        Mr Irving has raised and I did indicate that I thought he
        ought to have an answer, I would still like such
        information as can be obtained from Dr Longerich to be
        communicated to him and to me.

   MR RAMPTON:  I will try again.  Given that it is accepted to be
        an authentic document, and given also that it is not
        perhaps a document that lies at the heart of the case
        though it has some significance obviously, I will do
        it.  That leads me to make an enquiry, if I may, of your Lordship.

   MR IRVING:  Can I just finish?

   MR JUSTICE GRAY:  Yes.  You have some other points?

   MR RAMPTON:  My Lord, I am sorry, this is a connected enquiry,

.          P-215

        if I may.  That may take time.  I do not know myself at
        the moment what date judgment is likely to be because
        obviously, if your Lordship is going to consider any
        additional documents, they will need to be got sooner
        rather than later.

   MR JUSTICE GRAY:  I do not know either.  I hope it will not be
        as long as you might fear.  That does not tell you very
        much, does it. That is not intended to be delphic,
        but think in terms of a small number of weeks rather than
        a large number of months.

   MR RAMPTON:  I was not trying to put any pressure on at all.
        For the sake of this exercise, I obviously need to know.
        If it is going to be in three or four days time,
        I probably will not be able to achieve it.

   MR JUSTICE GRAY:  I think that will be unlikely.  That is all I
        can do.  If you can obtain it as soon as possible -- if
        you cannot, so be it.  We will have to manage without.

   MR RAMPTON:  We will do what we can.

   MR JUSTICE GRAY:  Mr Irving, you have listed some other matters.

   MR IRVING:  I wish to conclude on page 104, if I may.

   MR JUSTICE GRAY:  I am so sorry.  Hang on, why are you telling me about that now?

   MR IRVING:  Okay, then it is wrong that I should let your Lordship know.

   MR JUSTICE GRAY:  Is that not relevant only to costs?  Tell me

.          P-216

        if I am wrong, but that would be the way I would see it.

   MR IRVING:  Not only the costs, my Lord, there are other features of part 36.

   MR JUSTICE GRAY:  Let me just read it.

   MR IRVING:  My understanding is that your Lordship was not
        informed of what was in the offer, but that offer was made
        under the new rules.

   MR JUSTICE GRAY:  I do not see the relevance of telling me that
        unless and until it comes to the question of costs.

   MR IRVING:  Yes.  The question of costs is covered by the next
        paragraph, which is that I do not propose asking for my
        costs in this action.

   MR JUSTICE GRAY:  It is premature to be telling me that.

   MR IRVING:  Not at all, my Lord.  This is surely the place when
        I can put this into your Lordship's mind and that deals
        with it, puts it out of the way.

   MR JUSTICE GRAY:  It is true, but I would only address that
        question once judgment had been given.

   MR IRVING:  But I do ask your Lordship to give judgment in the
        terms and premises set out in my writ and statement of
        claim, namely damages, including aggravated damages for
        libel and an injunction restraining the Defendants and
        each of them, whether by themselves or agents or otherwise
        from further publishing or causing to be published the
        said or similar words defamatory of myself as claimant.

   MR JUSTICE GRAY:  Yes.  You gave me that little list of other

.          P-217

        things you were going to raise today.  Standard of proof
        in graver libels, I think you know that I believe I know
        what the law is on that so you need not trouble with it,
        unless you want to.  Is there anything you wanted to say
        particularly, Mr Irving?  I am not stopping you, I just do
        not think it is really necessary.

   MR IRVING:  It is trite law, is it not, my Lord?

   MR JUSTICE GRAY:  It is.

   MR IRVING:  We had this discussion earlier and I thought it
        important -- in fact it is obviously very impertinent of
        me to draw it your Lordship's attention.

   MR JUSTICE GRAY:  It is not at all, no.  I have it in mind
        anyway.  Section 5, I think we have resolved that in an
        earlier discussion today.

   MR IRVING:  We have dealt with 4 because I have now done it.

   MR JUSTICE GRAY:  Yes.  Costs we have decided it is premature.
        Now I realize time is passing but it is obviously sensible
        to conclude everything today, and I hope I can perhaps do
        it in this comprehensive way.  You have seen that in the
        Defendants' detailed written submissions they recite
        various concessions -- you may not like the term but they
        call them concessions which they say you have made about
        such matters as shootings in the East, numbers killed,
        whether it was systematic, whether Hitler knew about it,
        and also in relation to deaths at the Reinhardt death
        camps.  Do you accept you did make those concessions?

.          P-218

   MR IRVING:  The answer is I have not seen them, but I know of
        them.  I have not had any time at all to read that big
        thick thing.

   MR JUSTICE GRAY:  Then I do not think it is fair to ask you to
        give answers on the hoof.  What I will ask you to do
        though is this.  If you either dispute that you ever made
        the concessions that the Defendants say you made, or you
        want now to reconsider ----

   MR IRVING:  Resile.

   MR JUSTICE GRAY:  Well, I was trying not to use that word
        actually -- to reconsider, then would you write to me and
        to the Defendants, shortly setting out what you say you
        said, or what you now say?

   MR IRVING:  Yes.

   MR JUSTICE GRAY:  Because I do not want to be under any misapprehension.

   MR IRVING:  Purely on the matter of concession?

   MR JUSTICE GRAY:  Yes.

   MR IRVING: I will certainly do that within the next two or three days.

   MR JUSTICE GRAY:  Good.  Is there anything else, Mr Rampton?

   MR RAMPTON:  Yes, there is.  I should like to apologise
        personally -- I dare say I am right in thinking it was
        directed at me -- for not being able in one moment to
        restrain my frustration.  I apologise for that.

   MR JUSTICE GRAY:  There is no need for that.

.          P-219

   MR RAMPTON:  Yes.  I should at my age know better.  But, as
        your Lordship will remember, it is sometimes extremely
        difficult to restrain oneself when one can actually hear
        the evidence of one's own witnesses being misrepresented.
        I am not going to do a trawl through what Mr Irving has
        said.  Your Lordship has the evidence.

                  But there is one thing which he said which
        I really do think needs to be corrected.  If this is a
        case without this kind of high profile, I might say
        nothing at all.  Mr Irving said that Professor van Pelt
        had no explanation for the many oddities in Bischoff's
        letter of 29th June 1943.  That is an important document.
        In fact, when I re-examined on 2nd February, that is day
        14, page 3 to page 13 at the end, by reference to the
        little clip of documents by which Mr Irving sought to show
        the uniquely ----

   MR JUSTICE GRAY:  Yes, I remember that quite well, all the
        oddities, as it were.

   MR RAMPTON:  In fact, he explained every single oddity, except
        the missing year date in the reference.

   MR JUSTICE GRAY:  Yes, I remember that quite well, but thank
        you for reminding me what the reference is.

   MR IRVING:  My Lord, in view of my traditional right to the
        last word, I would reserve the right to write your
        Lordship a letter setting out the oddities in that
        Bischoff letter, with a copy to the Defendants.

.          P-220

   MR JUSTICE GRAY:  No.  I do not think I am going to invite
        that.  I feel fairly deluged anyway with paper.  I really
        do.  I have in mind both what you said were the reasons
        why you at that stage disputed the authenticity, and
        I know you still question the authenticity of that
        document, but I also have in mind, in a general sense, the
        explanations that were given by Professor van Pelt.  Now,
        anything else?

   MR RAMPTON:  I hope what I am going to say will be a joint
        request.  Because of all, as your Lordship can see, the
        interest in this case, much of it from overseas, I would
        ask that, perhaps a bit unusually, we could have - -
        whenever the judgment may be, that is not what I am asking
        -- some reasonable advance notice of the date.

   MR JUSTICE GRAY:  Yes.  I am anxious for all sorts of reasons,
        including the consideration you have just mentioned, that
        it should happen sooner rather than later, but I do not
        know how much notice is in practical terms really
        required, because I will not know until quite shortly
        before I actually finish that I am actually going to
        finish on a particular day.  I mean two or three days.  Is
        that far too short?

   MR RAMPTON:  The only thing perhaps, if I might gently suggest
        it, is your Lordship might in fact finish before the day
        of judgment, if you know what I mean, in other words
        finish writing and have a fixed day, so that, even if your

.          P-221



        Lordship finished before that day is reached----

   MR JUSTICE GRAY:  Yes, all right.

   MR RAMPTON:  I think a week actually would in all the
        circumstances ----

   MR JUSTICE GRAY:  That is what you want?  Mr Irving, I do not
        suppose you disagree with that, do you?

   MR IRVING:  I have my own reasons for wanting to have a lot of
        advance notice please, yes.

   MR JUSTICE GRAY:  I will do that.  I think that is sensible.

        You are going to forfeit the last word, are you?

                       (The court adjourned)

.          P-222




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