Irving’e karşı Lipstadt

Appeal

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

Table of Contents
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Subject Matter of Expert Evidence

22.It is an important part of Irving's application for permission to appeal to challenge how far expert evidence is admissible at all on the meaning of the words "Holocaust denier".
23. At 13.92 Gray J said; "I accept the evidence of Evans, which was not challenged by Irving, that what characterises a 'Holocaust denier', in the sense in which that term is used by Lipstadt in Denying the Holocaust, is that he or she holds or expresses some or all of the views which I have listed in paragraph 8.5 above."
 
24.Irving went through each of Evans's criteria in turn, asking Evans whether, to be a Holocaust denier, he merely had to satisfy one of these criteria, or all four. Evans never answered this question properly. Irving contends that, as a matter of fact, he certainly does not satisfy Evans's second and third criteria, which were not established against him on the evidence. See para. 47 below.
25.Moreover, as a matter of law, Gray J should not have received expert evidence on the meaning of ordinary English words; see in this respect Hodgkinson on Expert Evidence> at p.155:--
"... it may appear to be of benefit to call an expert witness as to meaning, or, as is more likely, to ask an expert, already giving evidence as to other matters in the case, to express a view on meaning in the light of his experience and skill. Save in limited arid specific circumstances, though, an expert's views are inadmissible and should not be canvassed."
26.As to the limited and specific exceptions, see Lovell and Christmas v. Wall (1911) 104 L.T. 85 per Cozens-Hardy M.R.:--
"If a document is in a foreign language, you may have an interpreter. If it contains technical terms, an expert may explain them. If, according to the custom of a trade or the usage of the market, a word has acquired a secondary meaning, evidence may be given to prove it."
 
27. For the rule, see per Fry J. (a judge very learned in matters of construction.) in Holt & Co. v. Collyer (1881) 16 Ch. D. 718 at 720, when rejecting evidence as to the meaning of a word:--
"In my view the principle upon which words are to be construed in instruments is very plain. Where there is a popular and common word used in an instrument, that word must be construed prima facie in its popular and common sense. If it is a word of a technical or legal character, it must be construed according to its technical or legal meaning. If it is a word which is of a technical and scientific character, then it must be construed according to that which is its primary meaning, namely its technical or legal meaning. But before you can give evidence of the secondary meaning of a word, you must satisfy the Court from the instrument itself or from the circumstances of the case that the word ought to be construed, not in its popular or primary signification, but according to its secondary intention."
28. The effect of receiving Evans's evidence on this crucial issue was to allow Evans rather than the Court to set the parameters within which the Defendants would have to justify the pleaded libels. It is submitted (1) that Gray J. erred in law in accepting Evans as an expert on the meaning of two ordinary English words, (2) that he should have reached his own view what "Holocaust denier" means, unassisted by expert evidence, and (3) that since he failed to do so, the Court of Appeal ought now to do so instead.
 
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