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

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The weight to be attributed to the evidence of the Defendants' experts

17."The duties and responsibilities of expert witnesses in civil cases" (per Cresswell J) were, it is respectfully submitted, well described by Cresswell J in The Ikarian Reefer [1993] 2 Lloyd's Rep. 68 at 81 to 82. This part of Cresswell J's judgment was by no means disapproved when the C.A. reversed him at [1995] 1 Lloyd's Rep. 455. They "include the following":--  
  • "1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
  • "2.An expert witness should provide independent assistance to the Court by way of objective, unbiassed opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.
  • "3.An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
  • "4.An expert witness should make it clear when a particular question or issue falls outside his expertise."
18.Gray J describes the Defendants' five expert witnesses and their purported areas of expertise at 4.17. It should be borne in mind that the Defendants had leave to call six historians and six social scientists as expert witnesses. They did not have (because they had not sought) permission to call experts in other disciplines, such as architecture, chemistry, or the technology of gas chambers and crematoria.
19.Irving's case is that all five were motivated by ideological bias, and that Evans in particular and Longerich to a lesser extent were demonstrably motivated by personal hatred, so transgressing against Cresswell J's principles 1 and 2, and that Evans offended gravely against 3 in relation to the Schlegelberger memorandum (para. 55 below) and the Bartz telex (para. 171 below). Irving contended throughout that Van Pelt   is doubtfully an expert in any relevant discipline at all. On the most generous view of Van Pelt's expertise, he gave crucial evidence on matters in respect of which he did not even purport to be an expert, contrary to 4, namely the chemistry of fumigation and killing by gas chamber, and the fuel consumption of crematoria.
20.Further, the fees which the Defendants paid to these experts for giving their evidence were so grotesquely large (Gray J was shocked by the figures on 5th May 2000, especially the payment to Funke, who made a very short appearance indeed at trial) that they could not possibly have given evidence "uninfluenced as to form or content by the exigencies of litigation".
21.The experts' fees were: Van Pelt £109,244.24, Funke £92,557.94, Longerich £76,195.25, Evans £70,181, and Browning a (relatively) modest £27,632.12.
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