The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day007.10

Archive/File: people/i/irving.david/libel.suit/transcripts/day007.10
Last-Modified: 2000/07/20

   MR JUSTICE GRAY:  Shall we have a discussion about Auschwitz
        now rather than?

.          P-81

   A.   We could try to -- I think we will dispose of it before
   MR JUSTICE GRAY:  If you found that a problem and you want more
        time, just say so, but why do you not go back to your
                  < (The witness stood down)
   MR RAMPTON:  My Lord, I will sit down because I would like
        Mr Irving to take this argument.
   MR JUSTICE GRAY:  Yes, Mr Irving?
   MR IRVING:  My Lord, if I can get to the legal precedents out
        of the way first, it is Edgington v. Fitzmorris with which
        I am sure your Lord is familiar, the statement by Bowen LJ
        that the state of a man's mind is as much a fact of the
        matter as the state of his digestion.  What is very
        material in this case is the state of my mind when I am
        writing the books.
                  We are partially examining in that, in the
        materials that we have been going over over the last few
        days in the proper manner, but I do not think that the
        state of Auschwitz or the state of what happened during
        the war years is nearly as material to the issues as
        pleaded as the state of my mind, if I can put it like
                  The issues as pleaded, in my view, bear a strong
        resemblance to the law in tort, the distinction with which
        your Lordship will be familiar between deceit and

.          P-82

        negligence.  The defence that the Defendants have pleaded
        is, basically, one of deceit, that I have had documents
        before me at the time I wrote the books, that wilfully or
        perversely attached to those documents meanings that no
        reasonable man could say they could bear.
   MR JUSTICE GRAY:  That is part of the Defendants' case.
   MR IRVING:  That is part of the defence.  But they go beyond
        that, my Lord, in a manner which I would aver a Plaintiff
        would be tempted to do if he has pleaded initially the
        case in deceit and, in finding that he is not making that
        case, he then ventures to throw in negligence as well,
        although he has not pleaded it.  He is not allowed to do
        that without amending his pleadings and this is a very
        serious matter for the court to consider.  If you find, my
        Lord, that the Defendants in this action are trying to
        plead negligence, if I can put it like that, as they have
        been saying.
   MR IRVING:  Mr Rampton --
   MR RAMPTON:  We are not.
   MR IRVING:  If they are saying, in effect, Mr Irving is a
        rotten historian, he did not do his job properly.  He
        spoke about Auschwitz, he wrote about Auschwitz and
        Holocaust.  He ought to have known better, then this
is a
        plea of negligence.  They have not pleaded negligence
        the pleadings as yet before the court, my Lord, and,

.          P-83

        course, it is perfectly open to them to go to your
        Lordship at any time and seek your Lordship's leave to
        amend their pleadings.  It would be a very grave step
        them to take because I would immediately ask your
        order that all the costs up to that point should be
        by the Defendants.
   MR JUSTICE GRAY:  They have not done it yet, so...
   MR IRVING:  No, my Lord, they are still attempting to
        effectively, deceit, and I suggest that they have not
        established a substantial case in deceit, but that is
        outside the realm of this argument. What is far more
        important is; what is the purpose of looking at what
        happened in Auschwitz and in the camps of Belzec,
        Treblinka and elsewhere if it was not known to me at
        time I wrote the book.  It may be of the utmost
        to history and for the purposes of historiography and
        has not escaped me and I am sure it has not escaped
        Lordship reading, as you say you do, the press
        that people hope that this will draw a line under the
        Holocaust and we shall establish what happened at
        Auschwitz and so on.  That is not the purpose of this
   MR JUSTICE GRAY:  Well, at the moment I am with you to this
        extent, that it seems to me that if you are able to
say of
        any particular piece of evidence relating to
        well, it was not available to me at the time, I find

.          P-84

        difficult at the moment to see how that really is
going to
        assist the Defendant's case.  Because their case, as
        I understand it, is that what you have said about
        Auschwitz flies in the face of the evidence, and that
        inference they ask me to draw is that you must have
        that it flew in the face of the evidence.
   MR IRVING:  I ought to have known.  There is a subtle
        difference, my Lord.  Must have known -- if they wish
        prove I must have known it, I submit that they had to
        establish that that material was at some material time
        before me when I wrote either or any of the editions -
   MR JUSTICE GRAY:  Well, I think "available to you".  I
think it
        is not just a matter of whether it was, in fact,
        you, because if you knew it was there and you, as it
        put your telescope to your blind eye and ignored it,
        that is as good as having seen it, and decided to
        it, as they would put it.
   MR IRVING:  My Lord, material may very well be there in
        or on the far side of the Fiji Islands for all I know
        there is a limit to what a reasonable person can
        one historian in my position to do by way of research
        a subject which is beyond the purview of the books
        he is know to write.
   MR JUSTICE GRAY:  I agree with you, it is a question of
   MR IRVING:  It is a question of degree, my Lord.  It is
        possible that the very capable researchers (and I have

.          P-85

        admire the effort they have put into this case) who
        backing learned counsel in this matter for the
        would have found documents after the expenditure of
        consider sums of money, as they have, in the defence
        this matter.  But no reasonable person can hold that
        against me that I did not find these documents or come
        those conclusions based on those documents and
        not 30 years ago at a time when none of these
        were available.
                  So it is an argument in negligence which
        are trying to make, my Lord, and I am asking that you
        that firmly in mind at the very least.  And I have
        up -- your Lordship will see three guidelines that I
        ask your Lordship possibly to accept, possibly with
        amendments.  They are on the first page.
   MR IRVING:  Does it go to the proof of wilful deceit, the
        evidence that the Defendants are adducing?  What
        were before the claimant, myself, at the time I wrote
        book or books referred to because, of course, we are
        just going to refer to Hitler's War.  I understand
        books are going to be the topic of discussion by the
        defendants. I respectfully submit that ephemeral
        utterances particularly extempore, unscripted talks
        less material to this action than books and I would
        to hear your Lordship's view on that.

.          P-86

   MR JUSTICE GRAY:  Well, you are talking about eyewitness
        evidence here?
   MR IRVING:  No, my Lord, no, I am sorry, you misunderstood
        there, that if they are holding to me a talk I have
        in Los Angeles or something like that, or an answer
        I given at a press conference, this should be given
        weight than what I have written in the books.  The
        are ephemeral, they are here today and gone tomorrow.
   MR JUSTICE GRAY:  That is a comment you can make, but
        you went on on the record at an IHR conference.
   MR IRVING:  Yes. Does that become a book?
   MR JUSTICE GRAY:  With some extreme remarks about
        let us assume that, it seems to me that they entitled
        rely on that as an instance of Holocaust denial as
        would label it.
   MR IRVING:  It is a matter of weighting, my Lord.  That I
        ask you to weight each of these utterances and say,
        here he is writing a book which is going to go in
        libraries and used as a reference work by other
        historians.  Clearly, far more weight should be
        to these than off the cuff remarks he makes at an
        conference. I am not thinking of any specific remark.
        I am not saying that is my own defence pre-emptively,
I am
        just saying that I would just ask your Lordship to
        them accordingly.
   MR JUSTICE GRAY:  I hear what you say.

.          P-87

   MR IRVING:  Yes. Have they established -- the second point
        beyond the balance of probabilities, as I understand
        it is in a civil action like this, that the Claimant
        with various alternative interpretations and following
        the Defendants wrongly represent an agenda to
        Adolf Hitler put fraudulent meanings on these
        before him, i.e. meanings that were so perverse that
        reasonable and unbiased man informed by the same
        and expertise could have arrived at those meanings.
   MR JUSTICE GRAY:  No, I think that is putting the case, or
        asserting that the case against you has to be
        at a far higher level than it seems to me that it
        does have to be established.  I think what they have
        show, or what they may have to show, I have not heard
        Mr Rampton yet, is that you have misrepresented the
        and that you have done so because you are working to
        own ideological agenda.
   MR IRVING:  Wilfully represented, not accidently or
   MR JUSTICE GRAY:  Not accidently, yes, I am cautious about
        "wilfully" because that may not help.
   MR IRVING:  They will have to establish the element of
        deliberation in that, my Lord, otherwise it does fall
        under the ambit of "negligence", which they are not
   MR JUSTICE GRAY:  Yes, and No. 3.

.          P-88

   MR IRVING:  What about the element of reasonable doubt, my
        Lord?  Or the balance of probabilities?  You say you
        not prepared to accept that.
   MR JUSTICE GRAY:  No, I have not said that.
   MR IRVING:  But which is the part of paragraph 2 which you
        difficult to accept then?
   MR JUSTICE GRAY:  It is you asserting that the Defendants
        to show that you put as you described it "fraudulent
        meanings" on the materials --
   MR IRVING:  As opposed to negligently doing it.
   MR JUSTICE GRAY:  What I was -- I accept the point you make
        negligence -- suggesting to you is that they may not
        to establish quite that, but I am inclined to accept
        they will have to establish that this was a
        non-accidental, false interpretation placed on
        for the reason that you had your own political agenda,
        that I think --
   MR IRVING:  My Lord, for example, the word "haben" and
        is a typical example; was this a deliberate misleading
        the word or was it an --
   MR JUSTICE GRAY:  That is a very good example.
   MR IRVING:  A negligent --
   MR JUSTICE GRAY:  A very good example, yes.
   MR IRVING:  Thirdly; have they established -- have the
        Defendants established beyond the balance of
        that I wilfully and following that political agenda

.          P-89

        mistranslated or distorted such materials.
   MR JUSTICE GRAY:  I do not find much to disagree with about
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  But, Mr Irving, this is all helpful in a
        but I understood we were going to be having an
        about the Auschwitz evidence I am not sure I
understand --
   MR IRVING:  This comes up --
   MR JUSTICE GRAY:  How this impacts on that.
   MR IRVING:  If they are going to be introducing a lot of
        evidence about Auschwitz which will no doubt be of the
        utmost interest to everybody in this court, and at the
        expense of the person who pays the costs of this action,
        or persons, I think that your Lordship should rule
        repeatedly on what falls within the issues as pleaded and
        pleaded under the ambit of "deceit" rather than of

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