Irving’e karşı Lipstadt


Holocaust Denial on Trial, Statement of Mark David Bateman: Electronic Edition, by Mark David Bateman

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I, MARK DAVID BATEMAN of Davenport Lyons of 1 Old Burlington Street, London W1S 3NL will say as follows:-

1. I am an Associate in Davenport Lyons, Solicitors for Penguin Books Limited ('Penguin') which was the First Defendant in this action. I have had conduct of this matter at Davenport Lyons under the supervision of my principal, Kevin Bays since the Claimant issued and served his Writ against Penguin and others in September 1996. The contents of this witness statement are derived from matters within my own knowledge save where appears otherwise from the context.
2.The Claimant has applied for permission to appeal against the judgment of Gray J (bitting without a jury) delivered on 11 April 2000. Gray J refused permission to appeal. In August 2000, the Claimant served a skeleton argument, setting out detailed grounds of appeal. The Defendants responded with submissions in September 2000, to which the   Claimant replied in October 2000. Sedley LJ refused permission to appeal on those grounds, having given the papers detailed consideration, on 18 December 2000.
3.The Claimant now renews his application for permission to appeal at an oral hearing. He has also applied for permission to adduce new evidence at the hearing of his application for permission to appeal and, should permission be granted the appeal itself. The Claimant first intimated to Penguin that he intended to apply to adduce new evidence at a hearing in the Court of Appeal on 17th January 2001. The Court set a time-table with respect to any new evidence and on 1st March 2001., the Claimant served the witness statements of Germar Scheerer, more commonly known as Germar Rudolf ('Rudolf') and Zoe Polanska-Palmer.
4.For new evidence to be introduced at the appeal stage, the Claimant must fulfil the requirements set down in Ladd -v- Marshall [1954] 1 WLR 1489 at 1491. There are three requirements: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) that the evidence must be such that, if given, it would probably have an important influence on the result of the case although it need not be decisive; and (3) that the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.
5.Penguin submits that, so far as Rudolf's witness statement is concerned, the Claimant cannot fulfil the first requirement of the Ladd -v- Marshall test. The evidence was available and could have been adduced by him at trial. This statement concentrates on this point, although the other two requirements are dealt with briefly at paragraph 96. So far as Polanska-Palmer is concerned, Penguin submits that her evidence would have had no conceivable impact on the outcome of the case. I return to her witness statement at paragraph 97.
6.So far as it is necessary to do so, Penguin will seek to rely at the hearing of the Claimant's application for permission to adduce new evidence upon the witness statements served on 27th April 2001 on behalf of Professor Lipstadt, who was the Second Defendant in this action. Those witness statements are from Professor Robert Jan van Pelt (who gave   evidence at trial), Dr Richard Green and James Libson. I have sought to avoid repealing matters set out in those statements, except where it is necessary to do so
7.There are 4 exhibits to this statement which are now produced and shown to me marked "MDB 1", "MDB 2", "MD 3" and "MDB 4". "MDB 1" contains a chronology of Rudolf's contact with Irving and supporting documents. "MDB 2" contains correspondence with the Claimant's Solicitors about the evidence the Claimant seeks to adduce and, in particular, about the sources for the Rudolf witness statement. "MDB 3" contains three documents downloaded from the Internet: the 'critique of the Judgment of Mr Justice Gray'; the 'critique of the van Pelt report Jan-Feb 2000)'; and the 'critique of the van Pelt report Jan-Apri1 2000)'. "MDB 4" contains copies of other documents refereed to in this statement, mainly source material for the Rudolf witness statement.
8.This witness statement intends to show the following:
  • (i) That the application to introduce Rudolf's witness statement is fatally flawed in that the Claimant does not even assert (still less prove) that the evidence could not have been obtained with reasonable diligence for use at trial. There is nothing in the Claimant's Application Notice, the Claimant's (or Rudolf's) witness statement or in his counsel's skeleton argument to suggest that this requirement is or could be fulfilled.
  • (ii)That the evidence contained in the witness statements of Rudolf and of Zoe Polanska-Palmer was available for use at the trial.
  • (iii)That Rudolf has not made clear in his witness statement that vast parts of it are reproductions of earlier works, both by himself and of others. Many of the footnotes tend to mislead the reader as to the date(s) upon which source material was first available.
  • (iv)That Rudolf was asked to prepare his report at a very early stage (no later than 20th April 2000) but that despite this the first we were told of the introduction of new evidence was on the 17th January, 2001.
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