Holocaust Denial on Trial, Trial Judgment: Electronic Edition, by Charles Gray

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The parties' statements of case

4.1 Irving having established, as I have found, that Denying the Holocaust contains passages which are defamatory of him, it is necessary for the Defendants, if they are to avoid liability, to establish a defence. The burden of doing so rests, under the English system of law, upon the Defendants.
4.2The substantive defence relied on by both Defendants is justification, that is, that in their natural and ordinary meaning the passages of which Mr Irving complains are substantially true. I have already recited, in section II above, the so-called Lucas-Box 27 meanings or propositions the truth of which the Defendants seek to establish in order to make good their defences of justification.
4.3As practice requires the Defendants also set out in their formal statement of case, served in February 1997, the detailed particulars on which they rely in support of their defence of justification. In November 1999 the Defendants served a revised document entitled Defendants' Summary of Case. This document comprehensively rearranges, supplements and in some cases abandons the particulars previously served. Irving has, in my view sensibly, raised no objection to this recasting of the Defendants' case of justification.
4.4It is to be noted that in the particulars of their case of justification the Defendants do not confine themselves to the specific assertions made by Lipstadt in her book. To give but one example: no mention is made in Denying the Holocaust of the bombing of Dresden by the Allies in 1945. Yet section 5 of the Defendants' Summary of Case contains detailed particulars on that topic criticising Irving's treatment of the subject in his book Apocalypse 1945: the Destruction of Dresden. No objection has been taken or, in my judgment, could be taken to this course since the Defendants are   entitled28 to rely on Irving's account of the bombing of Dresden in support of their contention that he falsifies data and misrepresents evidence. The same applies to other matters raised by the Defendants in their Summary of Case which are not mentioned in Denying the Holocaust.
4.5For his part Irving has, in compliance with the rules, set out in summary form in his Replies to the Defences of the Defendants his answer to the allegations and criticisms advanced by the Defendants in justification of what was published. In October 1999 the Defendants sought from Irving answers to a series of detailed requests for further information about his case. Unfortunately most of those requests went unanswered. In the result much of Irving's case in rebuttal of the defence of justification emerged in the course of his evidence at trial and in the course of his cross-examination of the witnesses called by the Defendants. The Defendants, in my view rightly, felt themselves unable to object.
4.6The Replies also include an allegation of malice against both Defendants, apparently introduced in the mistaken belief that they were relying also upon the defence of fair comment on a matter of public interest. Malice may nonetheless be relevant to the issue of damages, if that arises.


27. Lucas-Box v News Group Ltd (1986) 1 WLR 147
28. Williams v Reason (1988) 1 WLR 96
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accessed 11 March 2013