Archive/File: people/i/irving.david/libel.suit/transcripts/day023.01 Last-Modified: 2000/07/24 IN THE HIGH COURT OF JUSTICE 1996 I. No. 113 QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London Monday, 21st February 2000 Before: MR JUSTICE GRAY B E T W E E N: DAVID JOHN CAWDELL IRVING Claimant -and- (1) PENGUIN BOOKS LIMITED (2) DEBORAH E. LIPSTADT Defendants 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) PROCEEDINGS - DAY TWENTY-THREE . 1 (Day 23 Monday, 21st February 2000. 10.30 a.m.) MR JUSTICE GRAY: Mr Irving, I just want to say something to Mr Rampton, if I may, first off. Do you think it would be possible, Mr Rampton, to get an index prepared for these files that have come into existence during the course of the trial? I mean J. MR RAMPTON: In hand ---- MR JUSTICE GRAY: Good. MR RAMPTON: --- already. MR JUSTICE GRAY: Because I am finding with the transcript so often you cannot actually discover where it is from the transcript and then you have to wade through. MR RAMPTON: Yes, I quite agree, but that is in hand. Slowly a process is happening whereby each topic will have a separate distilled file. MR JUSTICE GRAY: I am glad it is in hand. Thank you very much. MR RAMPTON: I have nearly finished the one on history and then there will be others. MR JUSTICE GRAY: Yes, Mr Irving. MR IRVING: May it please the court. My Lord, three minor points to deal with before I resume the cross-examination of Professor Evans. First of all, the Defendants provided to me, or served on me at about 6.30, in other words after close of business on Friday, a 24-page glossary of . 2 meanings of German words prepared by a Dr Longerich, who is going to be the next expert witness. I am not very happy about this way of doing things. They have been working on this case now for 18 months or more, and to have quite an important document like that provided to me at literally the last moment is awkward. R JUSTICE GRAY: I sympathise with that because you have quite a lot on your plate already but, having said that, I think I would probably be able to guess at the contents of a good deal of it because we have been through a lot in the evidence, have we not, like Ausrotten and so on. MR IRVING: It is perfectly proper that they should served such a glossary as that because experts are allowed to give evidence on the meaning of foreign words, as I understand it, and that is what this largely is. It is looking at various words in various documents partly pre-empting what I was about to say anyway. I am unhappy about the document being put to your Lordship in that form without your Lordship realising that it has only just been put to me. It is rather like the catalogue of extracts, a very handy reference form for your Lordship, rather like a printed index. I am just unhappy that it has been done at this very late moment. MR JUSTICE GRAY: I will certainly bear that in mind. MR. RAMPTON: Your Lordship has not got one, so can I pass one up. It is really a most helpful document, I find. That . 3 is in English. The original was in German. It is relatively uncontroversial, I would have thought. MR JUSTICE GRAY: It may be controversial, but nothing new? MR RAMPTON: There is nothing new in it. It is a review of the usage of certain key words. That is all it is. MR JUSTICE GRAY: As I understand it really, there is pretty much agreement that a lot of these words are either in themselves equivocal, they can mean something sinister or not, or in many cases the words are innocent, ostensibly innocent words are used to camouflage a sinister meaning. So in the end maybe not a great deal turns on it. MR IRVING: It may be helpful in some respects, it may be contentious in others, my Lord. That is all I want to say before I actually start the cross-examination on that. It is neither fish nor fowl again. Like so much that has been done in this case, it is neither the expert report which should have been served last August, nor is it something being put to the witness in the witness box. It is kind of halfway in between. MR JUSTICE GRAY: Can I tell you, I will bear that in mind when we get to it. Mr Rampton, shall I put this into Longerich? MR RAMPTON: Yes, would your Lordship put it in the front of Longerich, I would recommend. MR JUSTICE GRAY: Yes. MR IRVING: My Lord, the next point is of rather more . 4 substance. This concerns the matter of the expert reports which have been withdrawn. I am sorry, they have not been withdrawn, but on which no cross-examination will be possible. MR JUSTICE GRAY: Yes. MR IRVING: Your Lordship and I have both raised our eyebrows over the possibility of putting in reports without the witnesses to back them up as far as expert reports are concerned. I am going to invite your Lordship to direct that the Defendants should produce a skeleton, in effect, setting out the authorities and statutes on which they rely, if they intend to put in the reports without the experts. I think that would be perfectly proper to enable me to argue the matter at a later date. MR JUSTICE GRAY: Yes. I think I said, when Mr Rampton indicated that that was what they were intending to do, that it was the first time I had come across this being done in relation to experts' reports. I think it is reasonable that, subject to what Mr Rampton may wish to say, you should have chapter and verse presented to you for an entitlement to take that course with an expert, but I will hear what Mr Rampton says obviously. MR IRVING: Obviously, if I am not going to be required to present evidence or to impugn those experts reports, I should be told as early as possible because that will halt a major amount of the work that is still ahead of me. . 5 MR JUSTICE GRAY: I do not think anyone is suggesting you are not entitled to impugn their reports by evidence or in other ways. The question you are really on is whether they are entitled to adduce the experts' reports under the Civil Evidence Act or not. MR RAMPTON: I have to say, I do not think it is an enormous point. If we think we want to rely to any extent on the actual contents of the reports of the witnesses that we are not calling in person, then naturally we will have to persuade your Lordship that we are entitled to do that. Presently, my view is that almost everything that I need for cross-examination of this subject and for proof is to be found in Mr Irving's own words and in documents sent to him. MR JUSTICE GRAY: Yes, but if you are going to rely on the uncalled experts, then it may not take very long because I suspect the answer is that the language of the Act does not distinguish between expert and lay witnesses. MR RAMPTON: I am almost certain it does not, but I am not going to commit myself. MR JUSTICE GRAY: There may be some authority on it. It does strike me as slightly unusual. MR RAMPTON: I have not come across it before but that does not mean it cannot be done . MR IRVING: It does certainly put me at a disadvantage, not knowing precisely what they are intending to do. . 6 MR JUSTICE GRAY: I think we know what they are intending to do. There is a question whether they are entitled to do it. MR IRVING: Mr Rampton, as I understood, has just said that he might rely on parts and he might not, which leaves us precisely where we were when I into court this morning. What I am really asking is that your Lordship should direct them, if they intend to rely on part, they must indicate what statutes and authorities they are going to rely on to open that particular door. MR JUSTICE GRAY: I think I will be a bit more specific about it. I think it would be helpful to have it in writing briefly. MR RAMPTON: Yes. MR JUSTICE GRAY: I think there must be a brief written submission lodged by -- are we going to finish Professor Evans today? MR RAMPTON: Professor Evans today -- can I say a little bit about how I see things going? Your Lordship may or may not agree with me, I do not know. Professor Evans I hope will finish today. Then there will be Dr Longerich tomorrow. I hope that he will finish either tomorrow or Wednesday. Then comes the question what happens next. There is a vast amount of material in part generated by what one might call the history of Mr Irving's own activities in these areas. . 7 What Miss Rogers and I and others have been doing is to try and reduce all that vast amount of material to two files. Those files themselves are quite fat. First, I would not want to cross-examine Mr Irving on those files without his having seen them, and I do believe that the more time he could have to absorb - - it is all material which is in the wider range of files already. There is nothing new in it, but it has all been pulled together. In front of each section the intention is to have a little summary of what each section contains, which Miss Rogers has been doing with help. MR JUSTICE GRAY: These are the people he has associated with, is that right? MR RAMPTON: Yes, the people he has associated with, organizations and individuals. MR JUSTICE GRAY: Yes. MR RAMPTON: I began to read it over the weekend and it will be an extremely valuable set of documents. In the end, it will cut things down. My tentative proposal would be that, when Dr Longerich has finished, I would have some questions of Mr Irving in cross-examination on history, but I would leave that association cross-examination until the following Monday. Then, when that was finished, which would take maybe half a day or a day, I would then call Professor Funke. MR JUSTICE GRAY: You are, effectively, suggesting that . 8 Wednesday onwards should be time for Mr Irving to digest these files? MR RAMPTON: Probably Thursday onwards because I will have some cross-examination. A combination of Dr Longerich and my further cross-examination on history should get us probably through all or most of Wednesday. Then what I am proposing is we should take the last two days of this week off so that Mr Irving can read these files, which he should get by, I hope, tomorrow night. MR JUSTICE GRAY: Yes. MR RAMPTON: If he says he cannot do it in the time, then he will say so and your Lordship will hear what he has to say. MR JUSTICE GRAY: Can we just revert to the written submissions? I think close of business tomorrow for the written submissions on entitlement not to call the experts but to rely on their evidence. MR RAMPTON: I do not think it will take very long, I may be wrong. The new edition of Phippson has just come out, so I can have a look in that. MR JUSTICE GRAY: Say close of business tomorrow for a short note of the submissions. MR RAMPTON: Yes. MR JUSTICE GRAY: So you will get it hopefully sometime towards the end of tomorrow. Mr Irving what about the suggestion Mr Rampton has just made about the way in which we deal . 9 with the rest of the evidence? I am not going to do anything if you have sensible objections to it. MR IRVING: I have no objection to that, my Lord. The timetable sounds very sound. If I was to utter a wish and I know my wishes count for very little in this court room, it would be that one of the spare days should be put before Dr Longerich rather than after, to able me to take Longerich probably advised, although I am prepared for him and, of course, I have read his entire report and have prepared a large bundle of material, which would in effect being tomorrow being free and Longerich being called on the following day. MR RAMPTON: I embrace that enthusiasm, if I may say so. It would make our task in completing these files a lot easier if we did it that way. I do not any longer have to do any preparation for Dr Longerich, except that that will also give me the opportunity to finish the history file. Mr Irving certainly will need that and, if he can get it by close of play tonight, or even lunch time tomorrow, that will help. MR JUSTICE GRAY: Yes, I am happy to do that, providing that we have the bundles available so that tomorrow can be used looking through your new material. I can use tomorrow.
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