Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 7: Electronic Edition

Pages 81 - 85 of 199

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    Mr Rampton, can I just ask you this,
 1"Abschaffen", you say, is relevant to Hitler's
 3 MR RAMPTON:     Yes.
 4 MR JUSTICE GRAY:     And is also an example of distortion?
 5 MR RAMPTON:     Oh, yes, it is three things. It is relevance, not
 6just of Hitler's knowledge, but probably of a Hitler, some
 7kind of a, one of these utterances -- well, it is more
 8than that.
 9 MR JUSTICE GRAY:     I understand how you put it.
10 MR RAMPTON:     It is an instruction. That is No. 1. 2, it is
11evidence of a developing distortion. The distortion is
12already there in 1977 with the word "remove". We can see
13that, in fact, from the footnote which uses "dispose" and
14the parenthesis. In 1991, in the eighth line down in the
15middle paragraph the word "remove" has been "extract" and
16the parenthesis has gone.
17 MR JUSTICE GRAY:     Yes, thank you.
18 A. [Mr Irving]     To which my response is, of course, that I have given no
19fewer than three different translations for the word
20"Abschaffen" in the one volume so the reader can pick his
21own way, my Lord.
22 MR RAMPTON:     My Lord, for the moment, until I see Mr Irving's
23other documents on Monday, that is as far as I need take
24that question today.
25 MR JUSTICE GRAY:     Shall we have a discussion about Auschwitz
26now rather than?

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 1 A. [Mr Irving]     We could try to -- I think we will dispose of it before
 3 MR JUSTICE GRAY:     If you found that a problem and you want more
 4time, just say so, but why do you not go back to your
 6 < (The witness stood down)
 7 MR RAMPTON:     My Lord, I will sit down because I would like
 8Mr Irving to take this argument.
 9 MR JUSTICE GRAY:     Yes, Mr Irving?
10 MR IRVING:     My Lord, if I can get to the legal precedents out
11of the way first, it is Edgington v. Fitzmorris with which
12I am sure your Lord is familiar, the statement by Bowen LJ
13that the state of a man's mind is as much a fact of the
14matter as the state of his digestion. What is very
15material in this case is the state of my mind when I am
16writing the books.
17     We are partially examining in that, in the
18materials that we have been going over over the last few
19days in the proper manner, but I do not think that the
20state of Auschwitz or the state of what happened during
21the war years is nearly as material to the issues as
22pleaded as the state of my mind, if I can put it like
24     The issues as pleaded, in my view, bear a strong
25resemblance to the law in tort, the distinction with which
26your Lordship will be familiar between deceit and

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 1negligence. The defence that the Defendants have pleaded
 2is, basically, one of deceit, that I have had documents
 3before me at the time I wrote the books, that wilfully or
 4perversely attached to those documents meanings that no
 5reasonable man could say they could bear.
 6 MR JUSTICE GRAY:     That is part of the Defendants' case.
 7 MR IRVING:     That is part of the defence. But they go beyond
 8that, my Lord, in a manner which I would aver a Plaintiff
 9would be tempted to do if he has pleaded initially the
10case in deceit and, in finding that he is not making that
11case, he then ventures to throw in negligence as well,
12although he has not pleaded it. He is not allowed to do
13that without amending his pleadings and this is a very
14serious matter for the court to consider. If you find, my
15Lord, that the Defendants in this action are trying to
16plead negligence, if I can put it like that, as they have
17been saying.
18 MR RAMPTON:     No.
19 MR IRVING:     Mr Rampton --
20 MR RAMPTON:     We are not.
21 MR IRVING:     If they are saying, in effect, Mr Irving is a
22rotten historian, he did not do his job properly. He
23spoke about Auschwitz, he wrote about Auschwitz and the
24Holocaust. He ought to have known better, then this is a
25plea of negligence. They have not pleaded negligence in
26the pleadings as yet before the court, my Lord, and, of

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 1course, it is perfectly open to them to go to your
 2Lordship at any time and seek your Lordship's leave to
 3amend their pleadings. It would be a very grave step for
 4them to take because I would immediately ask your Lordship
 5order that all the costs up to that point should be borne
 6by the Defendants.
 7 MR JUSTICE GRAY:     They have not done it yet, so...
 8 MR IRVING:     No, my Lord, they are still attempting to plead,
 9effectively, deceit, and I suggest that they have not yet
10established a substantial case in deceit, but that is
11outside the realm of this argument. What is far more
12important is; what is the purpose of looking at what
13happened in Auschwitz and in the camps of Belzec,
14Treblinka and elsewhere if it was not known to me at the
15time I wrote the book. It may be of the utmost interest
16to history and for the purposes of historiography and it
17has not escaped me and I am sure it has not escaped your
18Lordship reading, as you say you do, the press accounts
19that people hope that this will draw a line under the
20Holocaust and we shall establish what happened at
21Auschwitz and so on. That is not the purpose of this
23 MR JUSTICE GRAY:     Well, at the moment I am with you to this
24extent, that it seems to me that if you are able to say of
25any particular piece of evidence relating to Auschwitz,
26well, it was not available to me at the time, I find it

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 1difficult at the moment to see how that really is going to
 2assist the Defendant's case. Because their case, as
 3I understand it, is that what you have said about
 4Auschwitz flies in the face of the evidence, and that the
 5inference they ask me to draw is that you must have known
 6that it flew in the face of the evidence.
 7 MR IRVING:     I ought to have known. There is a subtle
 8difference, my Lord. Must have known -- if they wish to
 9prove I must have known it, I submit that they had to
10establish that that material was at some material time
11before me when I wrote either or any of the editions --
12 MR JUSTICE GRAY:     Well, I think "available to you". I think it
13is not just a matter of whether it was, in fact, before
14you, because if you knew it was there and you, as it were,
15put your telescope to your blind eye and ignored it, then
16that is as good as having seen it, and decided to suppress
17it, as they would put it.
18 MR IRVING:     My Lord, material may very well be there in Moscow
19or on the far side of the Fiji Islands for all I know but
20there is a limit to what a reasonable person can expect
21one historian in my position to do by way of research into
22a subject which is beyond the purview of the books which
23he is know to write.
24 MR JUSTICE GRAY:     I agree with you, it is a question of degree.
25 MR IRVING:     It is a question of degree, my Lord. It is quite
26possible that the very capable researchers (and I have to

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