Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 31: Electronic Edition

Pages 26 - 30 of 33

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    I cannot remember which section it is. In fact,
 1section 9 is, I think, about eleven pages long.
 2 MR JUSTICE GRAY:     I do not seem to have got it. I may well
 3have put it in the wrong place.
 4 MR RAMPTON:     It is eleven pages of single spaced typescript.
 5 MR JUSTICE GRAY:     No, I do not have it.
 6 MR RAMPTON:     Here is another copy.
 7 MR JUSTICE GRAY:     It was not handed in this morning.
 8 MR RAMPTON:     Again, it follows the scheme of the relevant
 9paragraph in the written skeleton.
10 MR JUSTICE GRAY:     I cannot really claim to make sense of that,
11just seeing it now.
12 MR RAMPTON:     No, of course not. It is a late section in the
13submission, and it needs to be read in the light of
14everything that has gone before, particularly section 1 of
15paragraph 5, the historiography section, but also, of
16course, the Auschwitz section.
17 MR JUSTICE GRAY:     Yes.
18 MR IRVING:     One other point I am unclear about is precisely
19which matters the Defendants are now claiming protection
20of section 5 over.
21 MR JUSTICE GRAY:     As to that, again, if we are not having oral
22argument, it is only right that you should know how I was
23intending to approach it. This would normally be
24ventilated in the course of submissions. Effectively, it
25is really for me to decide and evaluate the seriousness of
26the various imputations against you.

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 1 MR IRVING:     Whether section 5 applies?
 2 MR JUSTICE GRAY:     Yes. I think you understand the way section
 35 works, and to the extent that there may be unproven some
 4relatively minor imputation against you, then it may be
 5that I would invoke section 5 and say, the fact that that
 6particular imputation has not been proved by the
 7Defendants is not going to mean that their defence of
 8justification as a whole fails.
 9 MR IRVING:     But some matters appear to have been left in limbo
10like, for example, the question of whether there was a
11breach of agreement over the Goebbels diaries in Moscow.
12 MR RAMPTON:     No, it is not in limbo at all. It is treated
13fully in the Moscow section. Our conclusion about section
145 is that it is no application in this case because
15everything that Professor Lipstadt wrote is true in
17 MR JUSTICE GRAY:     Quite, but one has to cater for the
18possibility. I think we either do have closing submissions
19or we do not. I think just having odd thoughts being
20canvassed is just not the way to go about it. I am making
21every allowance, Mr Irving, for the fact that you are a
22litigant in person.
23 MR IRVING:     Totally ignorant of the law, yes.
24 MR JUSTICE GRAY:     You have the opportunity to address me on
25whatever you wish to address me on. I do not know whether
26you have had the chance to absorb what the Defendants have

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 1said in their closing submissions. If you want to do it,
 2I think now is the opportunity to do it.
 3 MR IRVING:     Mr Rampton says that he is not pleading section 5
 4on any of the issues in their pleadings of course, in
 5their defence, that is.
 6 MR RAMPTON:     I do not say that. What I say is that we do not
 7believe that it has any application, because everything we
 8said is substantially true. That does not mean that, if
 9your Lordship does not agree with that, section 5 may not
10need to be applied.
11 MR IRVING:     They withdrew the Moscow witnesses and their expert
12reports and the documents that went with them. They have
13adduced no evidence whatsoever in justification of the
14allegation that I breached the agreement in the Moscow
15diaries therefore, and I cannot see therefore ----
16 MR JUSTICE GRAY:     I am in the difficulty that I have to admit
17that I have not got as far in the Defendants' submissions
18as the Moscow section, so I do not know, because I had
19expected that I was going to be taken through the
20submissions this morning or today.
21 MR IRVING:     My Lord, I have dealt ----
22 MR JUSTICE GRAY:     So I cannot help you on that.
23 MR IRVING:     I dealt, probably quite improperly then, with the
24matter in my closing submissions where I dealt with the
25allegations about the Hamas and Hisbollah and Farakan and
26Pramyat in three or four pages in fact of my closing

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 1statement and strongly suggested that section 5 should not
 3 MR JUSTICE GRAY:     Mr Rampton has not really addressed that
 4point, but I am well aware there is a great deal in
 5Professor Lipstadt's references to you in her book
 6which have not been sought to be justified at all.
 7 MR IRVING:     Yes.
 8 MR JUSTICE GRAY:     So it seems to me that section 5 has got to
 9play some part, whether it avails the defendants is
10something that I will have decide.
11 MR IRVING:     The allegation that I sit in my office beneath a
12portrait of Adolf Hitler and that kind of thing, for which
13again they have pleaded no justification, which will
14certainly go to my seriousness as a historian. I was
15hoping that we were going to obtain some definitive list
16from the Defendants of what they do intend to put in that
17particular sand bucket.
18 MR JUSTICE GRAY:     They are entitled to say, we say everything
19is true, full stop. As I understand Mr Rampton, that is
20the way it is put in the written submissions, but I think
21I have to approach it on the basis that section 5 is
22pleaded and it is there if the defendants need it.
23 MR RAMPTON:     Then, my Lord, it is up to the Plaintiff, the
24Claimant, to point to those -- I do not mean in any sense
25that it is a great deal -- few parts of what Professor
26Lipstadt wrote, specific parts, that the Defendants have

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 1not sought specifically to justify, and to say those parts
 2are outside section 5 because they are so serious; what is
 3more, I am entitled to damages for them because they are
 4distinct and severable allegations and not part of a
 5common sting.
 6 MR JUSTICE GRAY:     I think, to be fair, from what I have read of
 7Mr Irving's closing statement, he makes very clear what he
 8says has not been proven by the Defendants.
 9 MR IRVING:     Round about page 5 onwards.
10 MR JUSTICE GRAY:     He does not perhaps dot the I by saying, "and
11that is a severable allegation, which means that, it not
12having been justified, I am entitled to damages", but that
13is the thrust of the way he puts it, as I understand it.
14 MR IRVING:     I did look at Gatley last night on the severable
15allegation aspect of it and I am not sure that that is
16relevant in this particular matter. I tried to work it in
17but I found that I could not.
18 MR JUSTICE GRAY:     Whether it is severable or not?
19 MR IRVING:     Whether it is severable or not.
20 MR JUSTICE GRAY:     There may be something in that. I really do
21not, if I may say so, think that this is a satisfactory
22way of dealing with it.
23 MR IRVING:     Not in my closing submissions?
24 MR JUSTICE GRAY:     If you want to make a closing speech and make
25whatever points you like, then of course please do so,
26Mr Irving, and then Mr Rampton can separately reply to

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