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

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The Allegation that Irving is an "Extremist"

35.It is submitted that, as a matter of law, it is not sufficient to plead by way of particulars of justification that someone is an "extremist," let alone to introduce this point in the course of argument without pleading it sufficiently or at all.
36.Greer LJ said in Talley v. Fry [1930] 1 KB 467 at 479:--  
"Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right-thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right-thinking man is not actionable within the law of defamation."
37.A statement is not defamatory simply because it is untrue, so to suggest that someone takes a particular political position is not defamatory per se, even if it is completely untrue. See per Street J. in Slatyer v. Daily Telegraph [1907} 7 NSWSR 488 at 498, a New South Wales case, which is generally accepted as good law in England, and is cited with evident approval at note 90 to para. 2.19 of Gatley.
38.That, it is submitted, is the case, however "extreme" the position in question may be. True it is that there are cases (they are to be found at note 88 to para. 2.19 of Gatley) in which it has been held that it is defamatory to say of a man that he is a Communist, but they are best explained on the basis that the libels complained of carried the implication that the plaintiff was a traitor in the pay of a foreign power, or that he advocated overthrowing the state by violence.
39.Thus Devlin LJ said in Kantorowicz v Cookridge, The Times, 10 October 1960, at the height of the Cold War, and at a time when the full extent of Stalin's crimes was already well known, that it would not in all circumstances be defamatory of a man to say that he was a Communist.
40.An extremist is merely a man whose ideas depart radically from the prevailing climate of opinion at a particular time. Anyone who suggested that the suffrage should be extended to the working classes would have been considered an extremist in the climate of opinion which held sway in 1800; anyone who suggested that the suffrage should be extended to women would have been considered an extremist in the climate of opinion which held sway in 1900. These were never morally reprehensible positions. Thus to prove that Irving associates with noníviolent "extremists" ought to avail the Defendants nothing.
41.The crucial distinction in this case, it is submitted, is between libels SA and 8B at paras. 44 and 45 below.
42.The principal issues on appeal in relation to justification, numbered by reference to the importance which Irving attributes to them, and not chronologically, are Irving's treatment of (1) Hitler's personal knowledge of the scale and scope of Nazi atrocities against the Jews during the Second Word War ("WWII") generally, (2) Auschwitz in particular, and (3) the events of Kristallnacht. Irving's case is that (1) and (2) are crucial, while (3) is important.
43.The Defendants additionally sought (successfully) to justify by reference to Irving's treatment of (4) Hitler's 1924 trial following the unsuccessful Beer Hall putsch and (5) the crime statistics for Berlin in 1932. Irving contends that (4) and (5) are of secondary importance.
44.The Defendants further succeeded on their plea of justification by reference to (6) Irving's account of the bombing of Dresden in February,   1945, (7) Irving's anti-Semitism and racism, and (8A) the claim that Irving associates with right wing extremists.
45.The Defendants did not attempt to justify Lipstadt's allegation (8B) that Irving associates with violent extremists, and failed to justify Lipstadt's allegations that Irving (9) works in his office under a portrait of Hitler, (10) had damaged the historic glass microfiches of the Goebbels diaries in the Moscow archives, and (11) had broken an agreement with the director of the Moscow archives.
46.As to (7) and (8A): on the Defendants' case as pleaded, (7) is prejudicial and irrelevant, or goes at most to Irving's motive for treating (1), (2), (3), (4) and (5) as he allegedly did, and could not of itself justify the pleaded libels, while (8A) is irrelevant, and could not under section 5 or otherwise justify the pleaded libels.
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accessed 11 March 2013