Irving v. Lipstadt


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

Pages 86 - 90 of 199

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    It is a question of degree, my Lord. It is quite
 1admire the effort they have put into this case) who are
 2backing learned counsel in this matter for the defence,
 3would have found documents after the expenditure of very
 4consider sums of money, as they have, in the defence of
 5this matter. But no reasonable person can hold that
 6against me that I did not find these documents or come to
 7those conclusions based on those documents and certainly
 8not 30 years ago at a time when none of these documents
 9were available.
10     So it is an argument in negligence which they
11are trying to make, my Lord, and I am asking that you bear
12that firmly in mind at the very least. And I have drawn
13up -- your Lordship will see three guidelines that I would
14ask your Lordship possibly to accept, possibly with
15amendments. They are on the first page.
16 MR JUSTICE GRAY:     Yes.
17 MR IRVING:     Does it go to the proof of wilful deceit, the
18evidence that the Defendants are adducing? What materials
19were before the claimant, myself, at the time I wrote the
20book or books referred to because, of course, we are not
21just going to refer to Hitler's War. I understand other
22books are going to be the topic of discussion by the
23defendants. I respectfully submit that ephemeral spoken
24utterances particularly extempore, unscripted talks are
25less material to this action than books and I would like
26to hear your Lordship's view on that.

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 1 MR JUSTICE GRAY:     Well, you are talking about eyewitness
 2evidence here?
 3 MR IRVING:     No, my Lord, no, I am sorry, you misunderstood me
 4there, that if they are holding to me a talk I have given
 5in Los Angeles or something like that, or an answer
 6I given at a press conference, this should be given less
 7weight than what I have written in the books. The talks
 8are ephemeral, they are here today and gone tomorrow.
 9 MR JUSTICE GRAY:     That is a comment you can make, but supposing
10you went on on the record at an IHR conference.
11 MR IRVING:     Yes. Does that become a book?
12 MR JUSTICE GRAY:     With some extreme remarks about Auschwitz,
13let us assume that, it seems to me that they entitled to
14rely on that as an instance of Holocaust denial as they
15would label it.
16 MR IRVING:     It is a matter of weighting, my Lord. That I would
17ask you to weight each of these utterances and say, well,
18here he is writing a book which is going to go in
19libraries and used as a reference work by other
20historians. Clearly, far more weight should be attached
21to these than off the cuff remarks he makes at an press
22conference. I am not thinking of any specific remark.
23I am not saying that is my own defence pre-emptively, I am
24just saying that I would just ask your Lordship to weight
25them accordingly.
26 MR JUSTICE GRAY:     I hear what you say.

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 1 MR IRVING:     Yes. Have they established -- the second point --
 2beyond the balance of probabilities, as I understand it,
 3it is in a civil action like this, that the Claimant faced
 4with various alternative interpretations and following as
 5the Defendants wrongly represent an agenda to exonerate
 6Adolf Hitler put fraudulent meanings on these materials
 7before him, i.e. meanings that were so perverse that no
 8reasonable and unbiased man informed by the same materials
 9and expertise could have arrived at those meanings.
10 MR JUSTICE GRAY:     No, I think that is putting the case, or
11asserting that the case against you has to be established
12at a far higher level than it seems to me that it actually
13does have to be established. I think what they have to
14show, or what they may have to show, I have not heard
15Mr Rampton yet, is that you have misrepresented the facts
16and that you have done so because you are working to your
17own ideological agenda.
18 MR IRVING:     Wilfully represented, not accidently or
20 MR JUSTICE GRAY:     Not accidently, yes, I am cautious about the
21"wilfully" because that may not help.
22 MR IRVING:     They will have to establish the element of
23deliberation in that, my Lord, otherwise it does fall
24under the ambit of "negligence", which they are not
26 MR JUSTICE GRAY:     Yes, and No. 3.

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 1 MR IRVING:     What about the element of reasonable doubt, my
 2Lord? Or the balance of probabilities? You say you are
 3not prepared to accept that.
 4 MR JUSTICE GRAY:     No, I have not said that.
 5 MR IRVING:     But which is the part of paragraph 2 which you find
 6difficult to accept then?
 7 MR JUSTICE GRAY:     It is you asserting that the Defendants have
 8to show that you put as you described it "fraudulent
 9meanings" on the materials --
10 MR IRVING:     As opposed to negligently doing it.
11 MR JUSTICE GRAY:     What I was -- I accept the point you make on
12negligence -- suggesting to you is that they may not have
13to establish quite that, but I am inclined to accept that
14they will have to establish that this was a
15non-accidental, false interpretation placed on documents
16for the reason that you had your own political agenda, and
17that I think --
18 MR IRVING:     My Lord, for example, the word "haben" and "Juden"
19is a typical example; was this a deliberate misleading of
20the word or was it an --
21 MR JUSTICE GRAY:     That is a very good example.
22 MR IRVING:     A negligent --
23 MR JUSTICE GRAY:     A very good example, yes.
24 MR IRVING:     Thirdly; have they established -- have the
25Defendants established beyond the balance of probabilities
26that I wilfully and following that political agenda

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 1mistranslated or distorted such materials.
 2 MR JUSTICE GRAY:     I do not find much to disagree with about
 4 MR IRVING:     Yes.
 5 MR JUSTICE GRAY:     But, Mr Irving, this is all helpful in a way,
 6but I understood we were going to be having an argument
 7about the Auschwitz evidence I am not sure I understand --
 8 MR IRVING:     This comes up --
 9 MR JUSTICE GRAY:     How this impacts on that.
10 MR IRVING:     If they are going to be introducing a lot of
11evidence about Auschwitz which will no doubt be of the
12utmost interest to everybody in this court, and at the
13expense of the person who pays the costs of this action,
14or persons, I think that your Lordship should rule
15repeatedly on what falls within the issues as pleaded and
16pleaded under the ambit of "deceit" rather than of
18 MR JUSTICE GRAY:     But thinking of the evidence, which is not at
19the top of my mind at the moment, but thinking of the
20evidence that the defendants have adduced in relation to
21Auschwitz, one could put it into various categories, as
22indeed the Defendants do in their summary of case, it
23seems to me that most of what they are relying on was
24probably known to you, but if not known to you was
25certainly readily available to you; was it not?
26 MR IRVING:     I think that is very bold perception, my Lord.

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