إرفنج ضد ليبستدات


Holocaust Denial on Trial, Skeleton Argument of the Claimant (long): Electronic Edition, by Adrian Davies

Table of Contents
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The Law

13.Gray J's findings are based upon adverse inferences arising out of his assessment of the weight of the real, expert and documentary evidence. Gray J found that Irving could not honestly and reasonably have come to his stated conclusions, faced with the historical record taken as a whole.
14.On such findings, the correct approach is laid down in Lord Reid's speech in Benmax v. Austin Motor Co. Ltd [1958] A.C. 370 at 376:--
"... in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."
15.See also per Baggallay J.A. in The Glannibanta> (187-6) 1 P.D. 283 at 287 to 288:--
"Now we feel. . . the great weight that is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are. . . material elements in the consideration of the truthfulness of their statements. But the parties to the cause are nevertheless entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect."
16.It follows, it is submitted, that permission to appeal should be granted if it appears to the Court of Appeal likely that Gray J may have drawn the wrong inferences from the real, documentary and expert evidence.
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