Archive/File: people/i/irving.david/libel.suit/transcripts/day004.02
Last-Modified: 2000/08/01

   MR JUSTICE GRAY:  At some stage I am, presumably, going to have
        to absorb it.  I have noted, Mr Irving --

   MR IRVING:  The third point, my Lord.  I have suggested a

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        proposed timetable for witnesses.

   MR JUSTICE GRAY:  Before we get to that, could I go back to
        your point (1)?  I am a little concerned you feel part of
        your case has gone by the board.
   MR IRVING:  Indeed, my Lord.  If your Lordship would indicate
        how and in what manner I would be able to introduce the
        evidence I propose to lead?
   MR JUSTICE GRAY:  I thought about that.  Your main concern is
        you are obviously getting it into my head.
   MR IRVING:  Getting it before your Lordship.
   MR JUSTICE GRAY:  Quite.  Well, if I may say so, I think you
        have produced enough in writing and, indeed, to some
        extent in your opening, in your short evidence-in-chief,
        in regard to your reputation.  I do not think you need be
        concerned about that. That certainly has not gone by the
        board, as far as I am concerned.  As far as the attempt to
        destroy your legitimacy as an historian, I know what your
        case is, but I think I have to remind you that this is
        actually an action on Professor Lipstadt' book, so --

   MR IRVING:  I anticipated your Lordship would say that, but in
        view of the fact that the sources on which that book draws
        have been part and parcel of this campaign to destroy my
        legitimacy, as I would have attempted to establish in the
        evidence that I would have proposed to lead, in that
        respect I consider it to be relevant to this case.
   MR JUSTICE GRAY:  Well, up to a point.  I think the fact is

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        that if Professor Lipstadt has jumped on board a sort of
        bandwagon of critics of yours.
   MR IRVING:  Use that phrase.
   MR JUSTICE GRAY:  She has to justify what she has adopted from that.
   MR IRVING:  It is very difficult to justify if one knows in
        advance this particular witness is not proposing to submit
        herself to cross-examination.
   MR JUSTICE GRAY:  You do not have to do it by going into the
        box yourself, you can do it by calling experts, as appears
        to be the Defendants' intention.  But do not worry about
        the point about having gone by the board.  I know what
        your case is.  I am very well aware of that.
   MR IRVING:  A case that is founded on documents is far better
        than a case based upon mere verbal allegations.
   MR JUSTICE GRAY:  I see that. If I want to try and elicit
more
        from your own expert witnesses when they come to give
        evidence about your own reputation and, indeed
perhaps,
        about the campaign, well, to a limited extent, of
course,
        you can do that.
   MR IRVING:  What about the historical documents, my Lord?
For
        example, in December 1942, on Friday, we were looking
at
        the December 1942 document -- I am sure your Lordship
        remembers -- when Himmler sent a report to Hitler
saying
        the 300,000 Jews shot as partisans, roughly speaking,
and
        this is used as evidence against me, or against my

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        position.  There is a similar document from the same
month
        showing a conference between Himmler and Hitler where
        Hitler is authorising Himmler to sell Jews to
foreigners
        for foreign currency which would indicate in the other
        direction that he is not hell bent on destroying every
Jew
        that comes into his possession. How will I be able to
        submit documents like that to your Lordship's
attention?
   MR JUSTICE GRAY:  This is a document not in your discovery
at
        the moment.
   MR IRVING:  It is in the discovery.  All these kinds of
        documents are in the discovery, but unless I -- I
think
        there are over 2,000 documents in my discovery, many
of
        them of many pages, and I am sure your Lordship will
not
        have had time to consider them all.
   MR JUSTICE GRAY:  No I do not pretend to.
   MR RAMPTON:  Might I again, I am only trying to help, I
have no
        doubt at all that Mr Irving is correct -- I have not
        looked at it myself but when he says he has disclosed
        these documents I have no doubt he has.  What has
happened
        is, of course, that the files, "bundles" the lawyers
call
        them, which your Lordship has, are ours.  Little or no
        material from Mr Irving's side, except in so far as we
        already had and want to use it.  What has not happened
in
        this case, I know not why, is there has not, I do not
        I think, been any request from Mr Irving to have files
        made up.

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   MR JUSTICE GRAY:  I follow.
   MR RAMPTON:  For submission to the court in the normal way.
   MR JUSTICE GRAY:  Mr Irving is obviously free where they
are
        relevant to say, well, there are other documents that
put
        a different complexion on it.
   MR RAMPTON:  I do not dispute this at all, what I am
        uncomfortable about as an advocate is, and I would I
think
        if I were the judge in this case be uncomfortable
about,
        is having documents coming at one with very little
notice
        and at sort of random intervals.  I would rather some
        hearing time or at some time when Mr Irving is not
doing
        something else he could sit down and make a list of
all
        the documents that he wants to refer to rebut our case
        against his integrity as an historian. Then we will
have
        them made up into files, which would then become the -
-
   MR JUSTICE GRAY:  I think he would say I cannot really say
in
        advance because it depends very much on what tack you
        adopt in cross-examination.  He will hear what you
say.
   MR RAMPTON:  My cross-examination merely follows the scheme
of
        my expert reports.  There is nothing -- there is
        nothing -- there is no ambushing.  It is all there.
   MR JUSTICE GRAY:  No, I accept that.
   MR RAMPTON:  What is more there were all those written
requests
        for information that we served in October or early
        November.
   MR JUSTICE GRAY:  Mr Irving, you hear what Mr Rampton says,
the

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        problem is time.  I mean, you are not going to have a
day
        to sit down --
   MR IRVING:  I agree, I am looking at practicalities.
   MR JUSTICE GRAY:  And do a list.  I think the answer must
to
        the extent you want to refer to documents you must be
free
        to do so, but I am not inviting you to produce a sort
of
        steady trickle of odd documents as we go along.
   MR IRVING:  My tactics will be, my Lord, that I will take
        specific issues, as I intend to this morning for a
very
        few minutes suggest on the basis of documents already
in
        the bundle or otherwise in the discovery that my
position
        is correct, and that the position which they have
laboured
        to establish is incorrect.  I was proposing to do that
for
        two or three minutes this morning on two specific
issues
        that we will come to later.
   MR JUSTICE GRAY:  Yes, to the extent you want to introduce
        documents then I am not going to stop you.  What I am
very
        anxious to do is make sure we know where they are
landing
        up.  I am intending to put them all in the bundle
called
        "J".  It may be sensible if everybody else does the
same,
        including those documents you produced I think on
        Thursday.  But if you can give Mr Rampton advance
notice
        of any documents that are not already in the bundles
then
        that would be helpful.
   MR IRVING:  I endeavour to do so, my Lord.
   MR JUSTICE GRAY:  Now these dates for Professor Watt and so

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        on.  I have no problem with any of them.
   MR IRVING:  I have established each date with a view to
        providing sufficient time for adequate cross-
examination
        and, of course, they are flexible to that extent.
   MR RAMPTON:  The first one is this Thursday.
   MR IRVING:  Professor Watt, yes.
   MR JUSTICE GRAY:  Mr Rampton is still going to be
        cross-examining, that is what he is going to say.
   MR RAMPTON:  I will still, but I do not mind my
        cross-examination being interrupted in the slightest.
   MR JUSTICE GRAY:  No, it might in some ways be an
advantage.
        I do not, like you, think there is going to be much
        cross-examination of these witnesses.
   MR RAMPTON:  I do not even know what Professor Watt is
going to
        say.
   MR JUSTICE GRAY:  That is part of the point, is it not?
Shall
        we proceed on the basis these dates are all
acceptable.
   MR IRVING:  Professor Watt and Sir John Keegan are
appearing on
        subpoena.  This brings up one minor point; Sir John
        Keegan's subpoena was dated for a different date than
the
        date we proposed now to call on because --
   MR JUSTICE GRAY:  That is agreed, is it not?
   MR IRVING:  It is agreed.  If your Lordship would agree to
        amend the summons.
   MR JUSTICE GRAY:  I am not sure I need formally to amend
it.
        It is agreed and accepted --

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   MR IRVING:  -- Solicitors are very anxious that they should
not
        be held to be in contempt.
   MR JUSTICE GRAY:  I can say now they will not be, as long
as he
        is here on February 7th at 10.30.  You want to address
the
        court on the Anne Frank diary entry and on Goebbels
diary.
   MR IRVING:  Yes, it is a little bundle of pages I gave you.
You
        will be relieved to hear that I only want to draw
        attention to five or six passages in them.
   MR JUSTICE GRAY:  Just pause a moment, would you, Mr
Irving.
        What I am going to treat this as being, as your
wishing as
        part of your evidence to amplify some of the answers
you
        gave on Thursday.  So I think it is best if you would
do
        it from the witness box.
   MR IRVING:  Very well, my Lord.
   MR JUSTICE GRAY:  That may sound a bit of a quibble, but
        I think that is the right way of doing it. Is there
        anything else before you go back.
   MR IRVING:  I think we have dealt with point 6 already,
that is
        the point about Auschwitz.
   MR JUSTICE GRAY:  Yes.  Mr Rampton, there is nothing else
you
        want to raise?
   MR RAMPTON:  Not in this letter, no.
   MR JUSTICE GRAY:  Or at all?
   MR RAMPTON:  Yes, there is.  I have another letter from
        Mr Irving.  It came on Saturday.  I do not know if
your
        Lordship has it.

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   MR JUSTICE GRAY:  I do not think I have.
   MR RAMPTON:  I will do it, if I may, from memory.  It looks
        like that, it has two paragraphs.  A very small point
on
        paragraph 1.  Yes, of course, he can show it to people
who
        would help him answer the point, or deal with the
point.
        "I do not know about my friends", I suppose that means
        "helpers".  That is a very small point.
                  There is a more serious point in the second
        paragraph.  The last sentence says: "Materials
collected
        for the purposes of testing the witnesses' credibility
and
        credentials will not be provided.  If they are
materials
        which have relevance to credit only, then that is
        perfectly correct, they need not be provided: If,
however,
        they have relevance to the issues in the case then
they
        must be provided.
   MR JUSTICE GRAY:  Yes, Mr Irving, I think that is right as
a
        matter of law.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  I do not know what you are talking about
when
        you refer to these materials.
   MR IRVING:  My Lord, I can be more specific.  We have
obviously
        a number of experts who are assisting me with advice.
        Some of them have submitted lengthy letters to me,
others
        have submitted expertise to me in more a formal form,
        which is very clearly of a nature designed to test the
        credit of the witness Professor van Pelt.  My

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        understanding of the law is that if it is designed to test
        his credit then I do not have disclose it.
   MR JUSTICE GRAY:  That is right.
   MR IRVING:  But it is very difficult to weed out from these
        reports what is a test as to credit and what is --
   MR JUSTICE GRAY:  If you have material which suggests that
        Professor van Pelt is wrong about --
   MR IRVING:  Specific issues.
   MR JUSTICE GRAY:  Whatever it may be about maybe points he
        makes on the Leuchter report, something of that kind, then
        that plainly has to be disclosed.  But if you have some
        sort of evidence suggesting that Professor van Pelt has an
        agenda of his own and has misconducted himself in some way
        as an expert, out of the context of this case,
        then I think you probably would not have to disclose
        that.  That may not be a very clear guide to you --
   MR IRVING:  We will do so with the utmost reluctance, but if it
        is the law, then we will do so.  But it is rather like
        playing poker with the other person having a mirror over
        your head.
   MR JUSTICE GRAY:  The short answer is, if it goes to the
        accuracy of his observations as an expert, as to what
        happened at Auschwitz, then I think you ought to disclose
        it.  If it is just prejudicing him as an expert in the
        general sense, then I think not.

   MR IRVING:  We will do so within 24 hours in that case.

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