Archive/File: people/i/irving.david/libel.suit/transcripts/day028.01 Last-Modified: 2000/07/25 IN THE HIGH COURT OF JUSTICE 1996 I. No. 113 QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London Wednesday, 1st March 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-EIGHT . P-1 (10.30 a.m.; Professor Funke, recalled. Cross-Examined by Mr Irving, continued.) MR JUSTICE GRAY: Yes, Mr Irving? MR IRVING: My Lord, I have put two small bundles in front of your Lordship. One is a bundle of photographs which I do not propose to dwell very much on. I think I will spend 10 seconds looking at each one with the witness. They are photographs of German meetings. They are minor points to be made possibly on each of the photographs. Some of he meetings we are familiar with, and some not. MR JUSTICE GRAY: Yes. MR IRVING: The second bundle, my Lord, I have yesterday taken the Eichmann papers, which is what I am now holding in my hand. I have converted them to hard copy. I would be quite happy to make that available to the Defence. I have extracted five or six pages already, which are the only pages I have found with a word search for "Fuhrer" or "Hitler" in any substance. They may help the Defence, they may help me, I have not really looked at them, but I have put them there in case there is any need for immediate action on them. MR JUSTICE GRAY: Well, you are not going to deal with them with this witness anyway? MR IRVING: No, my Lord. MR JUSTICE GRAY: So we will put that on one side. . P-2 MR IRVING: Except that lower down on the same bundle there are one or two things that I probably will draw the witness's attention to. MR JUSTICE GRAY: Mr Rampton, do we have a list of the alleged extremists? MR RAMPTON: Yes, we do. MR JUSTICE GRAY: I was thinking it might be helpful to have it at this stage. MR RAMPTON: Yes. So, it is a list of the alleged extremists, it is a list of the important ones for this part of the case. There is an "Others" category which really does not directly concern Professor Funke. MR JUSTICE GRAY: Right. Yes, Professor? A. Can I add three remarks from yesterday? MR JUSTICE GRAY: Yes, if you wish to. A. When? Q. Yes, now. A. OK, good. I rethought the coverage of 9th November '91 in Halle and, to my best knowledge, the NB, the National Bloc, is not as I said from the Ruhr area, but from Bavaria under the leader of Manfred Eichmann. This is the first. The second, I did not get the protocol of yesterday, so -- the minutes of yesterday, so I do not know if I got special question of David Irving right. So in the case I did not I want just to state that in those . P-3 pictures we saw he did not allude to direct forms of anti-Semitism, but that does not mean that he did not do this in the German, you know, appearances, and also if you see the whole text of the speech in Munich, I would claim this has anti-Semitic sentiments in it. The second one. MR IRVING: Which speech in Munich are you referring to? A. Yours. Q. Well I spoke in Munich about 30 or 40 times probably. MR JUSTICE GRAY: The one we saw on the video, I imagine. MR RAMPTON: Can I intervene at that stage, to point something out, and it is this. If we are talking about the first Munich meeting, the one which has "Wahrheit macht frei" and David Irving's name on the placard underneath it. Our understanding from the diary of Mr Irving, first of all, is that he spoke twice at that meeting, once before the interval and once after. The second thing, we learned from his reply, that he spoke altogether for about an hour, and that he said he was going to rely on the text of what he said at the trial of this action. MR JUSTICE GRAY: You have not had anything? MR RAMPTON: I have never had the tape or a transcript of it. MR JUSTICE GRAY: Yes. Mr Irving, what about that? MR IRVING: My Lord, obviously, at one time I had anticipated that I had a tape of it. In fact, I think there is correspondence indicating that I believed I did have a . P-4 tape of it, but I have disclosed all my tapes and cassettes to the defence in this matter, nothing has been withheld. I had no idea what was on the video cassettes because I did not have a video player. MR JUSTICE GRAY: In the light of that, Mr Rampton, I think it has to be left to cross-examination. MR RAMPTON: Well, I think it will. There are some other things I want to raise in relation to discovery in cross-examination. I am a little concerned, however, about the time-scale, because the cross-examination of Mr Irving by me, which might last a day, or a day and a bit, I hope we will be finished this week. MR JUSTICE GRAY: So do I. MR RAMPTON: That will be the last of the evidence. I cannot say any more than that. MR JUSTICE GRAY: No, obviously, I am not going to cut off Mr Irving. I have given an indication that I think the scope of cross-examination of this witness is relatively limited. You have, if I may say so, taken hints in the past, but you must take your own course, this is not a direction of any sort. MR IRVING: Next week, of course, I will have some submissions to make. MR JUSTICE GRAY: Of course. You both will. Anyway, shall we press on? Is there anything else? MR RAMPTON: Is it appropriate to say something about, if we . P-5 are talking about closing speeches, about timing, at this juncture? MR JUSTICE GRAY: Shall we wait until after we have dealt with (if I may so put it that way) Professor Funke? MR RAMPTON: It is only this, that there are a number of people here, and I do not shrink from saying, including me -- -- MR JUSTICE GRAY: Oh, I see, you mean how long an interval? Is that what you are getting at? MR RAMPTON: Yes, because there are "social" is the wrong word, but there are what one might call arrangements which have to be made. I have been talking earnestly with Miss Rogers, as I often do, and we are very anxious because of what might happen here after in another place, as the lawyers call it, that we leave no stone unturned to make sure that your Lordship has as much material as we would like you to have. Of course, I say without any kind of sycophancy, that I am confident that the case is in place already, but I cannot actually, in my client's interests, take that risk. Therefore, we want to do a long rather than a short job. I can do a short job. I can probably do it from memory, but I do not want to do that. It did seem to us we would need at least a week to get the thing properly in place. I am strongly of the view, as an advocate, I do remember, like your Lordship, in those days being of similar view, I think that it is not desirable that the Defendant makes a speech before a . P-6 weekend and the Claimant or Plaintiff after the weekend. Both should come in the same week. My proposal is that I should start on Monday 13th, which is a week from the coming Monday and that Mr Irving should have as much time as he likes thereafter, subject, obviously, to case control. MR JUSTICE GRAY: Mr Irving, do you have any views about that? MR IRVING: Whether it would be Monday 13th or not I think is in the stars, because if Mr Rampton wishes to have a clear week, presumably, that clear week starts running from the end of the time I have put in documents and so on by way of submission, which may take more than a day. MR JUSTICE GRAY: No, well, what I would be inclined to think in terms of, and we might have to revise this, is to have the whole of next week for preparing speeches, and if we do not finish the evidence by close of play on Thursday, then I think perhaps we can nibble into the week, because it seems to me that Monday the 13th would be a good day to have as a target for the start of closing speeches. MR RAMPTON: I would rather nibble into Friday if it came to it. MR JUSTICE GRAY: Yes, I do not dispute that at all. MR IRVING: I am afraid I do, because there is a German saying (German spoken) which means that a lot of dogs spell death to the hare, and there is a lot of dogs on the other side with no disrespect and there is one hare on this side. . P-7 I am carrying the ball entirely myself. MR JUSTICE GRAY: I follow that. MR IRVING: I cherish every day that I have for preparation. MR JUSTICE GRAY: I tell you what I propose to deal with that, is for you to have the opportunity to indicate during the course of that week, the week prior to 13th March, that you falling behind or whatever, if you really need more time, I do not myself think you will because you have a great capacity for getting through the material, but if you are finding it difficult then obviously I would be very sympathetic to further time. MR IRVING: I do not necessarily see the reason why it has to be a Monday Mr Rampton has to start unless he intends to speak for three whole days. MR RAMPTON: I doubt he will speak for three whole days but he might speak for the best part of one whole day. MR IRVING: That will allow both speeches to come within of compass of one week. MR RAMPTON: Yes. I do not mind, I was not (to use a bit of Latin) I was not trying to fix Monday, 13th, as a terminus post quo nome, but as a terminus quo nome, if I can put it like that, meaning to say that I do not mind when it is, but I do not want it before Monday 13th. MR JUSTICE GRAY: I think we are thinking in broadly the same terms. MR RAMPTON: I would only make other observation, it is not . P-8 right for Mr Irving to talk about dogs and hares when after all it is a pack of hares that is being chased by one dog. MR IRVING: Rabbits. MR JUSTICE GRAY: Yes. Professor Funke, you have something else to say? You did only mention two, yes. A. Yes. It relates to the Congress of 21st April '90 in Munich. I read the diary again and there is clearly described how and what form it was illegal, and that was the reference I had also to write it in my report. It was illegal demonstration after the Congress, and it is stated very clearly. The other thing I have to mention that to my best assessment the diary and the video converts to that, that at a given period of time he was with marching. THE INTERPRETER: Marching along with? A. Along with Kuhnen and the others towards the Vertherren Halle. I think it is very clear if you put these things together and also the letters Mr Irving gave us yesterday in the bundle J.
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