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Last-Modified: 2000/07/24

IN THE HIGH COURT OF JUSTICE            1996 I. No. 113

Royal Courts of Justice
                                           Strand, London
                            Thursday, 10th February 2000

                            MR JUSTICE GRAY

        B E T W E E N:

   The Claimant appeared in person
   MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons
and Mishcon de Reya) appeared on behalf of the First and
        Second Defendants
   MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on
behalf of the First Defendant Penguin Books Limited

MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
        the Second Defendant Deborah Lipstadt

        (Transcribed from the stenographic notes of Harry Counsell & Company, Clifford's Inn, Fetter Lane, London EC4 Telephone: 020-7242-9346) (This transcript is not to be reproduced without the written permission of Harry Counsell & Company)


.          P-1

                  (Day 18 -  Thursday, 10th February 2000.  10.30 a.m.)

   MR JUSTICE GRAY:  May it please the court.  Two or three minor
        housekeeping matters.
   MR IRVING:  Your Lordship requested yesterday or the day before
        yesterday, you expressed an interest in that remark by
        Hans Frank at the Nuremberg trial where he said that he
        had discussed it with the Fuhrer on February 2nd 1944.
        Your Lordship said you would like to see the passage
        concerned.  That is the top document in the heap which
        I have left your Lordship there.
   MR JUSTICE GRAY:  Thank you.
   MR IRVING:  In order that your Lordship can see the passage
        concerned, I have put it into bold face, and it is about
        10 pages in, I think.  It is easier to find -- it is three
        pages from the end, my Lord.
   MR JUSTICE GRAY:  Yes, thank you.
   MR RAMPTON:  Maybe your Lordship has something I have not.
   MR IRVING:  It is there.
   MR RAMPTON:  Thank you very much.
   MR JUSTICE GRAY:  It is in bold.
   MR IRVING:  I have put in bold, that particular passage.  The
        entire document is of interest and it may well be that
        Mr Rampton will wish to ask questions about it.  It is
        Hans Frank, who is the Governor General, which is not

.          P-2

        where Auschwitz was situated, of course, the Governor
        General, but he is relating his own experiences and how he
        learned, first of all, of the rumours from radio
        broadcasts, which may seem extraordinary and how he then
        went to discuss them with Hitler.
   MR JUSTICE GRAY:  Yes, thank you.
   MR IRVING:  The second point is ----
   MR JUSTICE GRAY:  Sorry to interrupt you, but where shall we
        put this?
   MR IRVING:  Miss Rogers will, undoubtedly, have a suggestion to
        make of a proper nature.
   MR JUSTICE GRAY:  Yes.  She is in charge.
   MR RAMPTON:  Probably in the J file somewhere or other.  At the
        back of tab 7 of L1(iv) for the present.
   MR JUSTICE GRAY:  Hang on, this is, in effect, an Auschwitz document.
   MR IRVING:  It is.
   MR RAMPTON:  Is it?
   MR JUSTICE GRAY:  So we do not want to put it in a ----
   MR RAMPTON:  I do not think it is an Auschwitz document.
   MR IRVING:  It is.  It goes to Auschwitz and Hitler's knowledge
        of Auschwitz.  It is actually the question of the final
        link.  Your Lordship may read this document either way, of
        course.  You may hold it against me, in fact, that Frank
        is discussing this with Hitler.
   MR JUSTICE GRAY:  I am not going to try to absorb it now

.          P-3

        because it maybe you will want to pick this up with
        Professor Evans.
   MR RAMPTON:  It is Hitler knowledge, really, because it
        reflects back on the suggestion that Frank was told by
        Hitler ----
   MR IRVING:  I agree.
   MR RAMPTON:  --- or one of Hitler's people on 12th December
   MR JUSTICE GRAY:  So you stick with L as being the appropriate
   MR RAMPTON:  Yes, I would stick with L for the moment.  L1, tab
        8, I am now told.
   MR JUSTICE GRAY:  Of 8, you are saying?
   MR RAMPTON:  If there is a tab 8.
   MR JUSTICE GRAY:  I know we are taking time on this, but it is
        really important that one has the documents in some sort
        of order.  Yes, Mr Irving.  Next one?
   MR IRVING:  The next point is that yesterday evening at about
        8.30 p.m. there was delivered to me by courier from the
        Defendants a very large bundle of papers once again for
        which Mr Rampton would say, I attach no blame
        whatsoever to the other parties; obviously, this is an
        action where that kind of thing happens.
   MR JUSTICE GRAY:  Well, I am not so sure about that, but I will
        guard my tongue at the moment.
   MR IRVING:  Basically, it was answers to questions which I

.          P-4

        had asked of today's witness, Professor Evans, on January
        2nd and January 3rd this year, around about that date, and
        here we are five weeks later; they have now delivered a
        response of probably 150, something like that, pages.
   MR JUSTICE GRAY:  Sorry.  You say you asked questions of
        Professor Evans on a previous occasion?
   MR RAMPTON:  Written questions.
   MR JUSTICE GRAY:  I do not think I have seen that.
   MR RAMPTON:  It is perfectly all right within the rules.
   MR IRVING:  Within the rules and with the aim of speeding
        things up.
   MR JUSTICE GRAY:  I do not think I have seen the product of
        your questions.
   MR IRVING:  Well, the product was delivered to me last night.
        It covers really the first 200 pages of his expert report
        which means I cannot today address myself specifically to
        those pages of his report.  It would be a nonsense.
   MR RAMPTON:  That is perfectly reasonable.  In fact, the
        answers run only to six pages, I think.
   MR IRVING:  Yes.
   MR RAMPTON:  The rest is what you might call supporting documentation.
   MR IRVING:  Very well.
   MR JUSTICE GRAY:  But why has this come ----
   MR RAMPTON:  Because Professor ----
   MR JUSTICE GRAY:  --- within hours of Professor Evans getting

.          P-5

        into the witness box.
   MR RAMPTON:  Because Professor Evans is a busy man and he has
        only just answered them.  I cannot answer them for him.
   MR JUSTICE GRAY: Well, that, of course, I understand.
   MR IRVING:  I make no criticism of that, my Lord.  Obviously,
        we both have our professional lives to lead, but for this
        reason it would be pointless for me to cross-examine him
        on those pages as I certainly shall.
   MR RAMPTON:  That I accept.
   MR IRVING:  Because he may very well have answered the matters
        in the meantime.  But today I was going to discuss more
        general matters with him.  We were going to set the scene
        as far as we possibly can.
   MR JUSTICE GRAY:  Yes, but may I just say something about your
        cross-examination?  I have spent many hours, to put it no
        higher, on day 16 and day 17 which is, basically, your
        cross-examination of Professor Browning.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  Your questions, if I may say so, are clear,
        almost always to the point, but what I would find helpful
        is if you would usually make a point of, if you can,
        directing me to the document that you are cross-examining
        on, or invite the Defendants to direct me to the document
        you are cross-examining on, because you probably
        understand when I go through the transcript (and I am much
        less knowledgeable than you and, indeed, than the

.          P-6

        Defendants), I do not always find it very easy to follow
        the drift of the questioning unless I know what the
        document says.
   MR IRVING:  My Lord, I will certainly do so in the written text
        of my summing up which I shall deliver to your Lordship as
        a written document as well as spoken.
   MR JUSTICE GRAY:  But, remember, I am trying to follow this and
        digest it as we go along from the transcript so that if
        you can ----
   MR IRVING:  Your Lordship will have noticed a disparity --- -
   MR JUSTICE GRAY:  --- accommodate?
   MR IRVING:  --- of effort between the man power on the Defence
        side and the man power on the Claimants' side of this
        case, and I do what I can.
   MR JUSTICE GRAY:  I know.  I am really inviting the Defendants
        to come to my assistance during your cross-examination.
        The trouble is -- I have said it before, I will say it
        again -- that the documents on certain aspects of this
        case are scattered amongst different files, mostly
        untranslated, and it does not make life any easier.  I say
        that with some feeling.
   MR RAMPTON:  I am not sure if I see that as a rebuke or not.
        It is a fact of life, however.  To make your Lordship's
        task easier because, after all, at the end of the case
        your Lordship is going to have a write a judgment, we will
        perhaps, as it were, in conference in open court with your

.          P-7

        Lordship try to put together -- we have for some subjects
        already done it, we did it for Reichskristallnacht, we
        have done it for Dresden and some other things.
   MR JUSTICE GRAY:  They are fine, those two topics.
   MR RAMPTON:  But there are, obviously, a number of key
        documents which your Lordship rightly says and,
        unsurprisingly, since the bundles have not been agreed in
        the usual way, but are simply the experts' references,
        they are scattered all over the place, we need to draw
        them together.  When we have done that, I think we need
        some help from your Lordship about which ones you would
        like us to translate.
   MR JUSTICE GRAY:  Yes.  I agree with all of that, but just
        looking ahead, for example on Longerich -- it is too late
        on Professor Evans and it may not be a problem with Evans
         -- it would be helpful to perhaps, prepare, a little
        bundle in advance.
   MR RAMPTON:  I agree, yes.
   MR JUSTICE GRAY:  It may be you have done all this already, but
        if you have not, do you think that could be considered?
   MR RAMPTON:  My working is different.  I have taken all the
        documents already from different experts for use in
        cross-examination, which is a slightly different exercise.
   MR JUSTICE GRAY:  Yes.  I will have to leave it to you, but
        bear in mind I am not rebuking so much as just expressing
        a real problem.

.          P-8

   MR RAMPTON:  I understand it as a plea for help.
   MR JUSTICE GRAY:  In a way, it is exactly that.
   MR RAMPTON:  Which I fully understand.  So what we will try to
        do, if we can, is get a Longerich bundle together, but it
        may well include some documents from other places.
   MR JUSTICE GRAY:  Yes.  Mr Irving, there are some other
        documents here.  Should I look at those now or are they
        for later?
   MR IRVING:  No.  I will draw your attention to them when the
        time comes, but I am going to draw your attention or
        remind your Lordship of what we call the Kinna document,
        K-I-N-N-A, which was a late arrival.  I am almost tempted
        to say it is a glamorous arrival.  It arrived late from an
        anonymous source, your Lordship will remember, and your
        Lordship asked the Defence to take two weeks to find out
        where it came from.  They have know provided that
        information to me last night.
                  It is a document which I regard as suspect
        inasmuch as it comes from a 1960's Polish publication,
        what we would call a blue book and the Germans a white
        book an the Nazis a brown book, I suppose, or the East
        Germans.  It is that kind of publication.  I make no
        criticism of that.  I am not going to attack the integrity
        of the document because I am not in position to.  But they
        have also produced in support of the document the
        testimony of the man who signed it, as I understand it

.          P-9

        taken in.
   MR JUSTICE GRAY:  Can we first of all go to this document?
   MR RAMPTON:  Yes, my Lord.  It was, I think produced ----
   MR JUSTICE GRAY:  I remember it.

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