Archive/File: people/i/irving.david/libel.suit/transcripts/day002.02
Last-Modified: 2000/07/20

   MR JUSTICE GRAY:  How we are quite going to deal with it, I do
   not know, but I think that is what has to be grappled with

                           P-112



        and, from my point of view, the sooner the better.
   MR IRVING:  We are also concerned with the Second Defendant
        here.  My Lord, I understand she will not be having a
        chance to speak and I will not be having a chance to
        cross-examine her.  I think it was a useful exercise
        because it gave us a chance to see her in action.  I
think
        she could have handled herself under cross-
examination,
        had she proposed to do so.
   MR JUSTICE GRAY:  You are entitled to make the point that
she
        is, apparently, not going to give evidence.  I have
that
        point and I have now had the opportunity of seeing her
on
        the interview.
   MR IRVING:  The other point I wish to draw attention to in
the
        video is that the other witness who will be called,
        Professor van Pelt, draws great attention to the
building
        he was standing on which was crematorium No. 2 in
        Birkenhau.  He points to the holes, he points to the
        room.  He says, "This is where it happened".  In
another
        video which I will show on another occasion, my Lord,
he
        goes into much greater detail more emotionally saying,
         "This is where it happened, this was the geographical
        centre of the Holocaust", and so on.
   MR JUSTICE GRAY:  You say that is a post war
reconstruction?
   MR IRVING:  No, my Lord.  We say something different about
        that.  This is crematorium building in Birkenhau.
What we
        say about that is that it was not what the Defence
make

.                                      P-113



        out that it was.  With your Lordship's permission and
        consent, I do not want to reveal precisely the
arguments
        we will lead on this occasion.  We will give the
Defence
        great time to prepare counter arguments and we have
spent
        a great deal of time and money with architectural
        consultants and so on providing this evidence.  I
would
        prefer to leave that evidence ----
   MR RAMPTON:  Can I intervene to say something about that?
I do
        not find myself left very happy about what Mr Irving
has
        just said.  The days are long gone where a Claimant
who
        responds to a plea of justification is entitled to
keep
        his rabbits in his back pocket and pull them out when
it
        suits him so as to deprive the other side of due
notice so
        that they can deal with it.  If he is sitting on
expert
        reports, expert evidence, as indeed he flagged up
        yesterday in his opening that he was, then we must
have
        them.
   MR JUSTICE GRAY:  I think that is right.  Can we just take
        stock at the moment, Mr Irving, and see where we are
        going?  You did, I think, say you were intending to
show
        three videos.  Are you really wanting to show a third
        one?
   MR IRVING:  I sense a certain impatience of your Lordship.
   MR JUSTICE GRAY:  I hope I am not displaying impatience.  I
am
        just telling you how I see the priorities.  I am not
        impatient.

.                                      P-114



   MR IRVING:  Possibly when we come to the Auschwitz phase,
it
        will be useful to show the next one which does
concentrate
        much more closely on the fabric of the sites of
Auschwitz.
   MR JUSTICE GRAY:  May I ask you, following up what you told
me
        yesterday about the misunderstanding, whether it is or
it
        is not agreed that Auschwitz should be taken
separately
        and first?
   MR IRVING:  We have agreed that, my Lord, and we have
reached a
        very satisfactory arrangement on the presentation of
our
        principal witnesses from overseas.
   MR JUSTICE GRAY:  That is very good to know.  Your opening
is
        really concluded now, as I understand it?
   MR IRVING:  That is so, my Lord.
   MR JUSTICE GRAY:  So I think probably, unless you tell me
that
        there is something else you want to deal with first,
the
        time has come for you to start giving evidence.
   MR IRVING:  What I had proposed to do this morning, my
Lord,
        the bundle which I submitted this morning and
replicates
        bundle D(ii), I think, which we have already had,
which is
        a very large number of photocopies of all the books
which
        I have ever written, apparently, which have been very
ably
        put together by the Defendants.  I had put together a
        selection of pages from those books on which I was
going
        to draw your attention, passages which would refute
        statements that had been made by the Defendants and
also
        by counsel yesterday.

.                                      P-115



   MR JUSTICE GRAY:  In relation to Auschwitz?
   MR IRVING:  No, my Lord.  Do I am apprehend that your
Lordship
        wishes to deal immediately with Auschwitz or other
        different phases?
   MR JUSTICE GRAY:  Well, if we are going to divide up the
trial,
        and I can see the sense of it, into Auschwitz and the
        rest, it seems to me at the moment, and Mr Rampton may
        take a different view, I do not know, that it is
sensible
        really to plunge into the issues that arise out of
        Auschwitz rather than going to anything else, because
the
        time for doing that may be when we get to the second,
as
        it were, half of the trial.
   MR IRVING:  My Lord, the Auschwitz matter is an immensely
        complicated matter involving the assembly of a great
deal
        of expert material, drawings.  The Defendants deluged
me
        on Friday evening after close of business with a
further
        5,000 pages of documents from van Pelt's report.  To
start
        straightaway today with that would put me at a
        gross disadvantage.  I am sorry that there may be a
        misunderstanding.  The agreement we reached was on the
        dates of presentation of our witnesses from beyond the
        seas, van Pelt in the case of the Defence and
Professor
        McDonald in my case, and I was still hoping and
        anticipating we could deal with the reputation aspect
        first which is well prepared, and push Auschwitz along
        away from us for a while.

.                                      P-116



   MR JUSTICE GRAY:  Well, you say "for a while", I mean how
long
        is the while?
   MR IRVING:  As long as is necessary for me to deal with the
        reputation aspects of the case.
   MR JUSTICE GRAY:  Well, I do see the sense of your
        establishing, I think by evidence, your reputation.  I
do
        not myself think that will take very long because,
bear in
        mind, I have read a lot of the material.  That is not
to
        say I do not want to hear you say it from the witness
box
        in summary.
   MR IRVING:  My Lord, you have read it, but the Press have
not.
   MR JUSTICE GRAY:  Yes, but the exercise is not really
entirely
        for the members of the Press.  I do not think we want
to
        take a lot of time in dealing with matters which are
not
        uncontentious, but which, perhaps, are not at the
heart of
        what is the true issue between the parties.  I am very
        anxious we get on if we can as soon as possible.
                  Can I just see what Mr Rampton would suggest
as
        the appropriate course?  I think my own view is that
        Mr Irving ought to go into the witness box from now on
        because I think the case has really been opened.  I
see
        the sense of hearing some evidence about his
reputation by
        way of preliminary.
   MR RAMPTON:  I have read his witness statement.  Apart from
        what he said in his opening yesterday, I really have
no
        clue, no real clue, about what his case is on the
detailed

.                                      P-117



        factual issues.  I am in the same position as your
        Lordship found yourself yesterday or said you did.
   MR JUSTICE GRAY:  Yes.
   MR RAMPTON:  I would like to know what his case is and I do
        not.
   MR JUSTICE GRAY:  Yes, well, I understand that.
   MR RAMPTON:  I do not mind what order he takes to do that.
If
        he wants to saturate with his historiographical
issues,
        his techniques and the inaccuracies of the criticisms
        which we have made, that is no problem to me at all.
        Whether he does it from the witness box or whether he
does
        it as part of his opening, again I really do not mind.
   MR JUSTICE GRAY:  No, I do not think it is terribly
important,
        but I think it probably is properly done by evidence
        rather than by further opening statements.
   MR RAMPTON:  I agree.  If he says he is not yet prepared to
        deal with the Auschwitz issues because they are,
indeed,
        detailed and complicated, that is perfectly all right
with
        us, but I do want to know what his case is and at the
        moment I do not.
   MR JUSTICE GRAY:  Well, his case is to be found not only in
his
        witness statement plainly but in the pleadings.
   MR RAMPTON:  Yes, I have some of his case from the reply.
   MR JUSTICE GRAY:  Yes.  That is quite comprehensive, it
        appeared to me, on the extent to which Hitler is
        responsible for the Final Solution, relatively
speaking.

.                                      P-118



   MR RAMPTON:  Yes, relatively.
   MR JUSTICE GRAY:  It is not, if I may say so, Mr Irving,
very
        detailed in relation to Auschwitz.  I have the broad
        thrust of your case, but I think there is a lack of
        detail.
   MR IRVING:  My Lord, I am ignorant of the rules of
procedure in
        this matter.  Would it be possible for me to be
examined
        in the witness box on two occasions?
   MR JUSTICE GRAY:  Yes.  Let us get clear what is being
        proposed.  It is being proposed that there should be a
        division of this trial really into two separate
        compartments, one is Auschwitz which is to an extent a
        free standing issue, it seems to me, a discrete issue.
        The other is all the other issues, such as the bombing
of
        Dresden, Hitler's responsibility for the Final
Solution,
        and so on.  Obviously, they are not wholly separate,
but
        I think they can be taken separately for the purposes
of
        the trial.
   MR IRVING:  My Lord, I think a perfectly satisfactory
solution
        which the court will, no doubt, find favour with is
that
        I will go into the witness box today and submit myself
to
        cross-examination on my pleadings, on the statements
that
        I have made, on the correspondence that I have
submitted
        to the other parties, on my opening statement and
whatever
        other matters they choose to put to me.  I will answer
        from the baggage that I carry around in my memory.  No

.                                      P-119



        doubt, I will have the opportunity at a later date,
        possibly when I can go back to my diaries or other
papers,
        to produce materials that I could not produce from
        memory.  I am sure this would be an adequate solution
to
        the problem.
   MR JUSTICE GRAY:  May I make a suggestion and then you can
        both, if you would like to, comment because I am very
        conscious you are in person and this is, for obvious
        reasons, not an easy case for you to conduct in
person,
        but what I would suggest is that you now go into the
        witness box, that you deal with your reputation and
your
        published works and so on, and you can take it that I
have
        read your witness statement, that you then state, at
any
        rate in broad outline, what your case is on Auschwitz
--
        I am perfectly happy, as it were, to help you along by
        asking you questions and then you can elaborate in
your
        answers -- and then for Mr Rampton to cross-examine
you in
        relation to Auschwitz,.
   MR IRVING:  At a later date?
   MR JUSTICE GRAY:  No, straight off, why not?  We are
dealing
        with that issue first.
   MR IRVING:  Very well.
   MR JUSTICE GRAY:  Then we will have, I do not know whether
this
        will work in terms of timing, the expert evidence in
        relation to Auschwitz, hopefully, from your expert and
        from Professor van Pelt.  Then you will have the

.                                      P-120



        opportunity to make submissions about it either at the
        very end of the case or, perhaps, at an earlier stage.
        Does that sound a sensible way of proceeding to you?
   MR IRVING:  I am not too happy about being cross-examined
on
        Auschwitz because our work on that is not complete.
Your
        Lordship may consider this is irrelevant, whether our
work
        on that is completed or not, because I am being asked
        about my own work and my own writings, and things that
        I may find out in the future are neither here nor
there
        which is the phrase that I used yesterday, but I am
sure
        your Lordship will have my interests at heart.
   MR JUSTICE GRAY:  Yes.  I am very anxious that you should
say
        whatever it is you want to say.  Your case should be
fully
        deployed.  But the case has been brewing a very long
        time.  I am a bit alarmed to hear that you are not, as
it
        were, fully up to speed on the Auschwitz issue.
   MR IRVING:  We have been fully up to speed repeatedly, my
Lord,
        with all the indications of that phrase.  Every time
we
        thought we were up to speed, we then received a fresh
        avalanche of binders with further documents.
   MR JUSTICE GRAY:  Yes, plus the 5,000 pages on Friday.
   MR IRVING:  Indeed, and more during the weekend.

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