Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 30: Electronic Edition

Pages 16 - 20 of 33

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 1 MR RAMPTON:     No, I was being slightly frivolous, but if there
 2has been any editing, it is by the become cameraman's own
 4 MR JUSTICE GRAY:     Yes, I follow that point.
 5 MR RAMPTON:     And not by us.
 6 MR JUSTICE GRAY:     It is a question of what he chose and what he
 7did not chose to include.
 8 MR IRVING:     My Lord, the cameraman was, I think, Michael
 9Schmidt who was this cameraman ----
10 MR RAMPTON:     That is as may be. He is not my servant or agent
11and we have nothing to do with the way that film looks on
12the screen.
13 MR IRVING:     Well, it goes to his Lordship's comment that the
14cameraman would have picked what interested him.
15 MR JUSTICE GRAY:     Mr Julius, do we really benefit by going into
16detail as to the history of these videos?
17 MR JULIUS:     I do not think so, my Lord, and I am not proposing
18to do that. If I may, I will just make three points. The
19first point is nothing was withheld from Mr Irving. On
20the contrary, this is a tape on which we place some
21reliance. The suggestion that we would not want to show
22it to Mr Irving or to show it to the court is, of course,
24     The second point I make is that no undertaking
25was broken.
26     The third point I would make is the point that

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 1has just been made by Mr Rampton, and that is that the
 2tape your Lordship saw was not edited in any way.
 3 MR JUSTICE GRAY:     No. I think I had misunderstood the position
 4as to the editing, but can you just help me about this?
 5I am not sure that I know what or, indeed, need to know at
 6this stage what the argument was, but you, you the
 7Defendants, had in your possession a copy of these videos
 8from when, from day one, as it were, or?
 9 MR JULIUS:     No, my Lord. What happened was this. During the
10course of preparing the case for the trial, a huge amount
11of material, as your Lordship can imagine, was being
12generated. It was being generated within the firm, it was
13also coming in from third parties. Lists were being drawn
14up on a periodic basis to send the material over to
15Claimant. This came in, I understand, after the last list
16was produced and at the time the view that was taken of it
17was that it was material generated for the purposes of
18litigation and, therefore, on the face of it, privileged.
19 MR JUSTICE GRAY:     Privileged? How could it possibly be
21 MR JULIUS:     Well, this was the preliminary view that was
22taken. In the event, it is not privileged. In so far as
23privilege was ever claimed for it, the privilege was
24waived. It is plainly a video that is important to the
25case, relevant to the issues and disclosable to the
26Claimant. It was disclosed to him and he has had it for

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 1a year now. He was keen to have it, and it is slightly
 2odd that he should now be keen to exclude it.
 3 MR JUSTICE GRAY:     Can I just ask one more question? For how
 4long was the claim for privilege maintained, as it were?
 5 MR JULIUS:     I think two days, my Lord.
 6 MR JUSTICE GRAY:     Right. Well, as is obvious from what I have
 7already said, I am satisfied that it is admissible, this
 8tape, but I leave it open to both parties to make whatever
 9comments they think it necessary or appropriate to make
10about the use that has been made of it in the short period
11when it was not disclosed on the basis it was privileged,
12and so on. Mr Irving, is that reasonably clear?
13 MR IRVING:     Very clear indeed, my Lord, yes.
14 MR JUSTICE GRAY:     What does that leave? You have some comments
15to make about the opening, the list of issues?
16 MR IRVING:     I think both Mr Rampton and I have a few,
17I certainly have very few comments to make on your
18Lordship's list. I am going to use the list as a North
19Star by which I shall steer in my closing statement.
20 MR JUSTICE GRAY:     That is really what it was intended to do.
21 MR IRVING:     Because, obviously, the onus is on the Defence to
22justify ----
23 MR JUSTICE GRAY:     Of course.
24 MR IRVING:     --- and they have to justify seriatim, whereas I
25shall reserve to myself the right to pick out major points
26which I consider would justify my conduct.

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 1 MR JUSTICE GRAY:     Yes. One thing that I think is perhaps
 2missing from this, and it is not missing because I did not
 3have it in mind, it is just that it did not strike me as
 4perhaps worth including a separate little heading for, but
 5I mention it because you will want to place reliance on
 6it, I have no doubt.
 7 MR IRVING:     I am sure.
 8 MR JUSTICE GRAY:     That there are many assertions in ----
 9 MR IRVING:     Section 5.
10 MR JUSTICE GRAY:     --- Professor Lipstadt's book which have not
11sought to be substantiated.
12 MR IRVING:     Section 5, my Lord, yes, the Hisbollah and
13Hammas ----
14 MR JUSTICE GRAY:     You say section 5. That is perhaps a
15slightly defensive way of looking at it, but that is
16something that also needs to be addressed as a topic.
17 MR IRVING:     That was precisely the one point I was about to
18make, my Lord, that I was unaware whether this was a
19deliberate omission that you thought was unnecessary even
20to tell me that because ----
21 MR JUSTICE GRAY:     No, I think the reason for it, if there needs
22to be a reason, is that I was focusing entirely on the way
23the plea of justification is put. That does not, of
24course, mean that I do not have to have in mind what was
25published and what has not been sought to be justified.
26 MR IRVING:     That was, in fact, the only detailed point that

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 1I wished to make about it, my Lord.
 2 MR JUSTICE GRAY:     I have one other observation which is
 3probably sensible I should make whilst you are on your
 4feet, and it relates to the, and it is my word, well,
 5I think it is the Defendants' word but I picked it up in
 6(ix) -- I do not know why it has become "P" but anyway --
 7the Claimant's honesty as an historian. I think that is a
 8slightly unsatisfactory gloss to put on what I understand
 9the Defendants' case to be, and I did not want you to be
10misled by the fact that I have used that label. It seems
11to me that it begs too many questions to be helpful. The
12allegation sought to be justified, and the meaning which
13it is accepted, I think, was borne by the words that
14Professor Lipstadt used, was that you were deliberating
15distorting the data, etc., etc., etc. ----
16 MR IRVING:     Precisely.
17 MR JUSTICE GRAY:     --- because you have an agenda of your own.
18Well, I can see that that might in some ways be described
19as dishonest conduct on the part of an historian, but
20I just thought I ought to make clear that I am not very
21happy with that word "honesty" used without a clear
22explanation of what in the context of this case it
23actually means.
24 MR IRVING:     My Lord, I had clearly apprehend exactly what your
25Lordship intends with that word. It is a manipulation,
26deliberate false translation and distortion.

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