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

Pages 1 - 33 of 33


 1IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN'S BENCH DIVISION
 2Royal Courts of Justice
 3Strand, London
 4 Tuesday, 14th March 2000
 5
 6Before:
 7MR JUSTICE GRAY
 8
 9B E T W E E N: DAVID JOHN CAWDELL IRVING
10Claimant -and-
11(1) PENGUIN BOOKS LIMITED
12(2) DEBORAH E. LIPSTADT
13Defendants
14The Claimant appeared in person
15MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the First and
16Second Defendants
17MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on behalf of the First Defendant Penguin Books Limited
18MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
19the Second Defendant Deborah Lipstadt
20
21(Transcribed from the stenographic notes of Harry Counsell
&Company, Clifford's Inn, Fetter Lane, London EC4
22Telephone: 020-7242-9346)
23(This transcript is not to be reproduced without the written permission of Harry
Counsell &Company)
24
25 PROCEEDINGS - DAY THIRTY-ONE
26

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 1 < (10.30 a.m.)
 2 MR JUSTICE GRAY:     Mr Irving?
 3 MR IRVING:     My Lord, I have provided your Lordship a copy of
 4the fresh off the presses closing speech which I
 5would propose to read tomorrow.
 6 MR JUSTICE GRAY:     How does that ----
 7 MR IRVING:     It is 104 pages. It continues from where the
 8version left off which I supplied your Lordship yesterday
 9and I have also reversed the order what I would call
10sections 2 and 3 of it. If I can say simply it starts off
11with have an opening preamble. It continues, my Lord,
12with a look at some of the historical issues and then only
13after a while does it, after about 30 pages, then go on to
14what I call bundle E matters.
15 MR JUSTICE GRAY:     Just so I understand how the two relate to
16one another, I had yesterday from you 56 pages, I think it
17was.
18 MR IRVING:     Yes.
19 MR JUSTICE GRAY:     Are they the first 56 pages?
20 MR IRVING:     They are the first 56 pages, but they have been
21cosmetically worked over. I have ----
22 MR JUSTICE GRAY:     Have they?
23 MR IRVING:     --- a gentleman who I refer to as my political
24correctness editor, he came over and worked over it for
25me.
26 MR JUSTICE GRAY:     Good. I have read and marked up slightly

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 1what you gave me yesterday.
 2 MR IRVING:     That is what I feared. The page numbers will make
 3no sense to you now, my Lord, because of the bulk change
 4I did. I switched, effectively, sections 2 and 3,
 5although they are not numbered, purely to put them into a
 6more optimistic up beat sequence.
 7 MR JUSTICE GRAY:     Right. I will try to -- I see, yes, it is
 8completely changed .
 9 MR IRVING:     When I get back, my Lord, I am sure it will help
10your Lordship if I produce a brief concordance and fax it
11through to your office which will give your Lordship an
12overview.
13 MR JUSTICE GRAY:     I can probably make my own way through it.
14 MR IRVING:     I have put headings in ----
15 MR JUSTICE GRAY:     Thank you very much.
16 MR IRVING:     --- which will assist your Lordship. I would also
17just like to say I had not at the time I wrote it had the
18opportunity of reading the Defendants' own statement. So
19it is written in vacuo, so to speak, not that it will
20alter matters, I am sure.
21 MR JUSTICE GRAY:     I think the theory was there was going to be
22an exchange so that is inevitable.
23 MR IRVING:     Effectively, there has been an exchange,
24simultaneous change, because I am sure they have not read
25mine and I have not read theirs.
26 MR JUSTICE GRAY:     Good. Thank you very much.

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 1 MR RAMPTON:     Your Lordship has got I think now, I hope, a
 2complete version of our written submission. All the
 3sections are now, I hope, complete.
 4 MR JUSTICE GRAY:     Yes.
 5 MR RAMPTON:     It is right. I will not not say any more about
 6that at the moment. It is over 200 pages of rather dense
 7reading. I will tomorrow, as I have your Lordship's
 8permission, I think, make a very much shorter summary
 9submission orally. I have not written that yet. Your
10Lordship will not find any of the contents of it, having
11regard to this, in the least surprising, I am sure.
12I shall try to make sure that your Lordship gets it and
13Mr Irving in good time before the hearing starts tomorrow.
14 MR JUSTICE GRAY:     Yes.
15 MR RAMPTON:     But I will be surprised if I am on my feet for
16even more than a part of tomorrow morning.
17 MR JUSTICE GRAY:     Good. Mr Irving, you are proposing to do the
18same thing, as I understand it?
19 MR IRVING:     I was hoping for some kind of guidance from your
20Lordship. If your Lordship would mark in bulk or inform
21me in bulk at some time which passages you felt were not
22proper to deal with orally or in detail. It is a detailed
23submission which I have made to your Lordship and your
24Lordship may feel that some of the matters are too
25detailed to be dealt with in a closing statement.
26 MR JUSTICE GRAY:     I think I will give you a bit of guidance

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 1because, having read yesterday's 56 pages, and I do not
 2say this critically but it did appear to me that there was
 3a great deal on the topic about which you obviously feel
 4passionately, namely what you see as being a conspiracy to
 5bring your career as an author to a premature end. Those
 6are not your words, I appreciate.
 7 MR IRVING:     I astutely avoided that word.
 8 MR JUSTICE GRAY:     No, but there is an awful lot on that topic.
 9Much of it did not appear to me to have anything to do
10with the Defendants. You may take a different view, but
11I am not sure that the evidence suggests that the
12Defendants are as involved with all the things of which
13you are complaining as you suggest. I, therefore, rather
14doubt whether it would be appropriate for you to use this
15court as a platform for what one might call a general
16attack on the conspirators, as you regard them.
17 MR IRVING:     That is precisely the view that I expected from
18your Lordship which I obviously anticipated in the letter
19that I attached to the document.
20 MR JUSTICE GRAY:     Yes.
21 MR IRVING:     I will edit substantially with that in mind before
22I come to make the oral presentation.
23 MR JUSTICE GRAY:     Yes.
24 MR IRVING:     It will remain a part of the submission that I make
25to the court, but it will not be put in the oral part of
26the submission, if I can put it like that.

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 1 MR JUSTICE GRAY:     Yes. I think that is sensible, but beyond
 2that I do not think I can really give you much guidance.
 3If you were able to hand in what you were proposing to say
 4in time for me to look at it, then if there is anything
 5I think that is for one reason or another objectionable,
 6or indeed Mr Rampton does, then you can be told and you
 7can make submissions if you want to why you should be
 8allowed to say it.
 9 MR IRVING:     I think I have a very astute feel for the way the
10court is feeling in this matter and, having got it off my
11chest, if I can put it like that, I will limit what
12I actually say to the matters which I consider to be of
13relevance.
14 MR JUSTICE GRAY:     Yes. What is at the heart of it, obviously,
15are criticisms that are listed in section 5.
16 MR IRVING:     Well...
17 MR JUSTICE GRAY:     1 through, well, to the end.
18 MR IRVING:     The problem that I had, of course, is that not
19having been able to cross-examine the Defendants in this
20matter which would have brought forward the links which
21I am sure are there, this was the material which was
22assembled with that in mind. They have avoided that
23difficulty by not presenting their witnesses for
24cross-examination.
25 MR JUSTICE GRAY:     Yes. I understand how you feel about that.
26 MR IRVING:     And I wanted, nonetheless, to put it before your

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 1Lordship. I also put a certain amount of explanatory
 2material in the footnotes which I was not proposing to
 3read out, purely to point your Lordship to where the
 4documents are so as far as I know they are in the bundles
 5or were they are in the daily transcripts.
 6 MR JUSTICE GRAY:     Yes, good. Well, then that is ...
 7 MR RAMPTON:     There is only one other thing I need to do, I am
 8sorry, it is to hand in a list of corrections -- they are
 9mostly typographical errors and missing references -- for
10our long submission, if I may do that.
11 MR JUSTICE GRAY:     Yes. It is for you to make such oral
12submissions as you wish.
13 MR RAMPTON:     I am sorry?
14 MR JUSTICE GRAY:     Are you going to make any oral submissions?
15 MR RAMPTON:     I am, tomorrow, yes.
16 MR JUSTICE GRAY:     Tomorrow, right.
17 MR IRVING:     I do not know whether this is the right point to
18your Lordship's attention to the fact that I am
19challenging now the Muller document, purely on the basis
20that it has not been provided to me in the way that your
21Lordship ordered the August 1st 1941 document, and this
22might be the place with which to deal with that. I
23have dealt with it in the submission that I handed in this
24morning.
25 MR JUSTICE GRAY:     Well, you will have to direct me to where it
26comes because, obviously, I have not read it.

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 1 MR IRVING:     I have not got it with me, my Lord, but, basically,
 2the document was supplied to me on the weekend. It does
 3not advance our knowledge as to the original document or
 4the original file. There are no surrounding documents
 5provided with it. I have not been able to make any more
 6detailed researches into the nature of the document. So
 7I have made a submission in the document I have handed
 8your Lordship, both on the admissibility of that letter
 9and, if your Lordship is minded to admit the letter in
10evidence, nonetheless, also on the content of the letter.
11 MR JUSTICE GRAY:     Well, this is all a bit opaque to me. Are
12you able to point to where you deal with this in your
13revised closing statement? I simply do not know my way
14around it all because I have only seen it within the last
15couple of minutes.
16 MR IRVING:     It was finished at 5 o'clock this morning.
17 MR JUSTICE GRAY:     I can understand that. Even so, if I am
18going to make sense of what you are telling me about the
19Muller document, I need to have the references, do I not?
20 MR IRVING:     I shall have to hold that over then, my Lord, until
21tomorrow.
22 MR RAMPTON:     My Lord, I simply do not understand this. I have
23never understood, apart from the fact that he does not
24like its contents, what Mr Irving's problem with this
25document has been. We have many documents in the file
26which are original Nazi documents headed "Abschrift" by

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 1the person who made the copy because that is what they
 2are. They are copies of original documents that have
 3disappeared, but they are contemporaneous copies.
 4     We now have have three copies of this document,
 5one from Moscow which is where the original copy is held
 6in the archive. That is the one that looks like that. It
 7has a front cover that looks like that. Your Lordship has
 8had all these, I think?
 9 MR JUSTICE GRAY:     I do not remember that front cover. Can you
10give me the reference? I am bound to say I have found it
11in trying to prepare my judgment, extraordinarily
12difficult because of the way in which the documents have
13been got together, but if you can give me the reference to
14it?
15 MR RAMPTON:     It is in N1. I have not got N1 here,
16unfortunately, but its date is 1st August so I can very
17quickly find it.
18 MR JUSTICE GRAY:     Page 49?
19 MR RAMPTON:     Yes. Page 49. I do not have it here, I am
20afraid, but the 49, the actual copy of which we now have
21three copies is at page 51.
22 MR JUSTICE GRAY:     Yes. I am just reminding myself of what the
23points were that Mr Irving took and he will tell me if
24there are any others. Firstly, it is an Abschrift;
25secondly, it has a rather security classification given
26its contents, just "Geheim".

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 1 MR RAMPTON:     There are plenty of those.
 2 MR JUSTICE GRAY:     And also Mr Irving, I think, said that he had
 3been told by the German Federal archives that the document
 4is not to be found in the file from which it purports to
 5come.
 6 MR RAMPTON:     Well, the explanation for that, I know not. As
 7I said, my speculation is that it is just a reference to
 8the wrong file. What I do now know, and Mr Irving knows
 9and your Lordship knows, is that the original document,
10the original Abschrift, is held in Moscow. A copy of that
11has been sent to us from Moscow, sent to Dr Longerich.
12There is another copy at the prosecution centre at
13Ludwigburg, that we also have. There is another copy in
14the archive in Munich, that we also have.
15 MR IRVING:     My Lord, the problem I have with the document is it
16is very analogous to the Schlegelberger document. The
17Defendants were able, in my view, unsuccessfully to attack
18the Schlegelberger document on the basis of the other
19documents in the same file. We have been shown just this
20one document. I am not able to attack it on the basis of
21other documents in the same file because, firstly, I was
22given the wrong file number and the Bundesarchiv told me,
23"This is the wrong file number".
24     Secondly, we have once again only been shown
25exactly the same copy which appears to be a copy which has
26been recopied for various other archives inside Germany.

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 1We have not been told what else is in that file which may
 2give it a completely innocent meaning. I submit that the
 3content of the document is relatively innocent anyway,
 4but, in view of the fact that the Defendants have had two
 5months to provide me with sufficient identifying material
 6which would enable me to identify the file so that I could
 7rummage around in the rest of the file, in the same way as
 8the Defendants were able to do with the Schlegelberger
 9document, I submit that your Lordship should say this is
10one document that should not be added to Mr Irving's
11burden.
12 MR JUSTICE GRAY:     Well, there was a stage in the trial when
13I think it was proposed that the Defendants should write
14to I think the archive in Munich to try to find out what
15documents, therefore, in whichever archive this did come
16from. I do not know whether that happened.
17 MR RAMPTON:     I do not know whether it happened or not.
18 MR JUSTICE GRAY:     I am right in thinking that was proposed?
19 MR RAMPTON:     I cannot even remember that, but I am sure your
20Lordship is. I really have no recollection of it. The
21short point surely is this, I would submit. This is on
22its face an original document. It does on its face say
23what we say it says.
24 MR JUSTICE GRAY:     I am sorry to interrupt, but it is not
25actually an original document is it, because it is an
26Abschrift?

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 1 MR IRVING:     My Lord, it does actually have SS runes in the last
 2line.
 3 MR RAMPTON:     It is an original Abschrift, that is the point.
 4It was an Abschrift made by some SS person at this time,
 5August 1941. There cannot be any doubting that. If
 6Mr Irving wanted, as it were, to skew or displace the
 7document's obvious significance, then it was up to him to
 8do so. The document has been in the file since goodness
 9knows when. It is no part of our burden to stand up a
10document which is on its face quite evidently authentic.
11 MR JUSTICE GRAY:     That is not to prevent Mr Irving saying
12"I challenge the authenticity of the document".
13 MR RAMPTON:     That is right.
14 MR JUSTICE GRAY:     I will then have to decide whether that is a
15historically valid challenge to mount to a document of
16this kind or whether it is not.
17 MR RAMPTON:     Of course, as he does with the document of June 43
18about incineration. Of course he can.
19 MR IRVING:     My Lord, the problem is I have not been able to go
20behind that document, if I can put it like that, because
21the wrong file was given to me. They have not provided me
22with the correct file number. They have provided me just
23repeatedly with the same Abschrift or copy, and all this
24has been done literally after the close of business on
25Friday, including sending me a document which they had
26received on January 28th, 42 days earlier, and they had

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 1only just forwarded to me, namely the copy they got from
 2Munich, and this has made it impossible for me to go
 3behind that particular document.
 4 MR JUSTICE GRAY:     We are launching into the detail of this one
 5document, and there is a lot of other ground to cover, but
 6are you saying to me that you would like to be told and
 7have disclosed to you by the Defendants such
 8correspondence as has taken place between them and the
 9Munich archive?
10 MR IRVING:     That would be a very useful order for your Lordship
11to make. If it turns out that they did not make the
12enquiries that your Lordship directed, then I would submit
13your Lordship should properly say in that case, "I will
14not admit this document in evidence".
15 MR JUSTICE GRAY:     That is stage two as it were. Mr Rampton,
16why should I not make an order that Mr Irving sees
17whatever correspondence there has been?
18 MR RAMPTON:     Because there is not any correspondence. It was
19done orally by Dr Longerich so far as I am aware. If
20there is a letter back from the Munich archive which I do
21not know about, which Mr Irving ought to see, then of
22course I will disclose it, or if your Lordship would like
23to see it.
24 MR IRVING:     Then of course we can see if there is any reference
25to the ----
26 MR RAMPTON:     So far as I know, there is no correspondence. Can

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 1I ask your Lordship to look at the fax cover? There are
 2two fax covers.
 3 MR IRVING:     The analogy, my Lord, would be if I produced only
 4the Schlegelberger document without the surrounding
 5documents in that file.
 6 MR RAMPTON:     That is as may be. I rather doubt it myself.
 7I have no idea of the size of the file to which this
 8document may belong. For all I know, it may contain
 9thousands of documents. It is not as though Mr Irving is
10confined to Munich. There are two other archives in which
11this document resides. You will see this is not Munich,
12this is Ludwigsburg who has written to Dr Longerich.
13 MR JUSTICE GRAY:     What I think should happen, since we are on
14the authenticity of this document, and what I order shall
15happen, is that by close of business today, by 5.30 today,
16Mr Irving should have disclosed to him such correspondence
17as has come into existence as a result of the Defendants'
18efforts to track down either the original of this
19document, or the contents of any file in which the
20document may reside at whichever archive it is in.
21 MR RAMPTON:     Of course. I have no problem with that at all.
22My worry is that there will not be any documents of that
23nature because there were not any letters written by
24anybody.
25 MR JUSTICE GRAY:     Then Mr Irving may be able to make some
26submissions based on the failure to chase up.

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 1 MR RAMPTON:     Unless, on the contrary, what I do do, or what
 2somebody does, it will not be me, is actually produce to
 3Mr Irving and your Lordship what one might call a file
 4note or memorandum about what Dr Longerich, if it is he
 5who did it, what he actually did.
 6 MR JUSTICE GRAY:     Yes.
 7 MR RAMPTON:     He probably will not any longer remember the dates
 8or the times of his telephone calls, but he will certainly
 9have a recollection of the people he spoke to and of the
10efforts that were made, and I know somebody went to the
11archive in Moscow on his behalf, to find this document
12and, if it be the case, any surrounding documents of any
13relevance.
14 MR JUSTICE GRAY:     If you would do that, either disclose the
15documents or in the form of a memorandum from Dr Longerich
16or those instructing you, let Mr Irving know and me what
17attempts have been made to locate anything that will help
18on the authenticity of the Muller document.
19     Mr Irving, it is for you to take your own course
20as regards any submissions you want to make, based on your
21written closing statement. Take your own course.
22 MR RAMPTON:     My Lord, before one leaves the question of this
23document, Mr Irving has, I fear not for the first time and
24I say that advisedly, actually not well represented what
25was said in court about this document. What he actually
26said, and this is on page 126 of Monday 28th February

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 1which is day 26, and we are talking about this Muller
 2document: "I would like to see either a facsimile or to
 3know reliably where the document is". Both those requests
 4have been complied with. I will still do what your
 5Lordship asked.
 6 MR JUSTICE GRAY:     Do not let us spend too long on this but what
 7I have noted for myself -- I may have got it wrong, I do
 8not know -- during the course of the trial Mr Irving
 9sought to enlist the assistance to verify the authenticity
10of the Muller document by obtaining copies of the other
11documents contained in the file of the Munich Institute of
12History where the Muller document was found. That is what
13I believe happened at some stage but I have no idea on
14which day.
15 MR IRVING:     My Lord, it is not only the authenticity, it is
16also the purport of the document, if I can put it like
17that.
18 MR RAMPTON:     I believe your Lordship's note may not be
19precisely accurate.
20 MR JUSTICE GRAY:     Can somebody track it down?
21 MR RAMPTON:     I am told, I have not done it of course, that
22those around me, including Miss Rogers and my instructing
23solicitors, have searched transcripts for this last week.
24The bit I just read was the relevant bit, and Mr Irving
25said on page 128 of the same day: "I need to know the
26actual file number of course. I need to know the correct

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 1file number". Your Lordship said: "That is fair enough,
 2Mr Rampton. When you have found out which file number or
 3numbers it is in, will you pass that on to Mr Irving?" In
 4fact, we did a good deal more than that, because we
 5discovered the document, as I say, in three different
 6archives, and he has had all three copies.
 7 MR JUSTICE GRAY:     I think the passage you just read out pretty
 8much bears out what I had in my note, if I may say so, but
 9I think we are getting a little bit bogged down in the
10Muller document. Yes, Mr Irving.
11 MR IRVING:     My Lord, I have no further submissions to make,
12I do not think, unless your Lordship wishes to remind me
13of one which I ought to have made. I think that
14everything is contained in my closing statement, which
15I intended to submit in that way. I was going to submit
16to you the contents of bundle E, but I have now done that
17in my closing statement, and I shall now take out of that
18closing statement what your Lordship avers is of less
19relevance.
20 MR JUSTICE GRAY:     I hear what you say. My understanding was
21that, when we were discussing closing speeches, what was
22proposed was that there should be an exchange of written
23speeches, written notes of what was going to be said by
24way of speeches or closing submissions. That date slipped
25and I totally understand why it slipped, but I had thought
26that the plan was that you would spend today, and Mr

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 1Rampton would spend tomorrow, elaborating on what you
 2provided in writing. If you do not want to, there is no
 3reason why you should. That is what I recall as having
 4been the plan. Mr Rampton, am I wrong about that?
 5 MR RAMPTON:     I think that was what I might call stage one.
 6I think that and again I am doing it only from memory, my
 7recollection was on the last hearing day, which date
 8I forget, what in fact emerged or evolved is on written
 9submissions each side would make a shorter, much shorter,
10oral submission. I have to go first as Defendant, a
11strange procedure it is, but there it is, that is what
12happens. I have to go first and I was given the first
13half of tomorrow and Mr Irving, I think, the second half.
14That is how I had read the transcript.
15 MR IRVING:     That is certainly how I understood it also, my
16Lord.
17 MR JUSTICE GRAY:     If you understood it that way. I am rather
18puzzled why we have all turned up today.
19 MR RAMPTON:     I agree; we thought, like your Lordship, first,
20that Mr Irving might have something to say about our long
21written submission, but I expect he has not had time to
22read it. Second, and more particularly, there was going
23to be an oral submission about the admissibility of his
24file E, his global file. He now says that he has made
25that, in effect, in writing. I am quite content with that
26and probably I shall not even respond to it; Miss Rogers

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 1might write a note about the law.
 2 MR IRVING:     I think the way I have done it in the closing
 3statement is the proper way to do it, my Lord. That gives
 4it the proper way and it avoids going through the very
 5lengthy file of documents that we had.
 6 MR JUSTICE GRAY:     Just explain to me what you both thought was
 7going to be discussed then.
 8 MR IRVING:     I had thought, and I am sure Mr Rampton was of the
 9same impression, that your Lordship was going put to us
10one or two questions concerning the documents that we have
11supplied to your Lordship over the weekend, namely the
12oral statements in their then existing state.
13 MR JUSTICE GRAY:     How can I put questions to you in relation to
14a document which I received from you this morning?
15 MR IRVING:     You have certainly received the statement from
16Mr Rampton and I think both of us -- this is certainly the
17result of conversations I had with the instructing
18solicitors over the weekend -- this is what we anticipated
19would be happening today, that your Lordship would be
20clarifying final matters, dotting the remaining Is and Ts
21before we reassembled tomorrow for the oral submissions.
22 MR JUSTICE GRAY:     Well, I will be measured in what I say, but
23I had expected to get a little bit of assistance really
24from both sides. But if you are both saying that you
25stand by what you submitted to me in writing and you make
26your public statements tomorrow, which I do not think will

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 1help me particularly in the task that I have, well, so be
 2it, if that is what you are both telling me.
 3 MR RAMPTON:     That is my understanding of what was to happen.
 4I had suggested to your Lordship, and I believe your
 5Lordship agreed, that this was a peculiar case, and I do
 6not mean that in any sinister way, but it is a case which
 7has some peculiar public importance, legitimate public
 8importance. Your Lordship took the view, and I believe
 9rightly, that there should be, unusually for a case tried
10by judge alone, a degree of oral statement at the end of
11the case.
12     My recollection is -- somebody is trying to find
13the transcript of day 30 -- that one of the things that
14was raised when we returned to court on that day, which
15I think was probably a Monday, was this question of how
16those oral submissions should be structured. I think what
17happened was that your Lordship said either yesterday or
18today there should be any submissions made, if there were
19any, about the long written submissions which your
20Lordship already has.
21 MR JUSTICE GRAY:     Yes.
22 MR RAMPTON:     And that on Wednesday the day would be shared with
23the much shorter oral summaries.
24 MR JUSTICE GRAY:     That bit I have no problem with. I took
25the view that was an appropriate course to take in the
26unusual circumstances of this case. I am really thinking

.   P-20



 1more now about what I had got the impression was going to
 2happen, either today or, indeed, yesterday or perhaps part
 3of tomorrow, which is perhaps some assistance, oral
 4assistance, in relation to the issues which I have got to
 5decide, but I, obviously, had misunderstood what you both
 6had in mind.
 7 MR IRVING:     My Lord, I make such submissions in the opening
 8paragraphs or opening pages of my closing statement, the
 9kind of way that I believe your Lordship should think.
10 MR JUSTICE GRAY:     Let me explain why I am a bit unhappy about
11this. Just to take an example at random, and this is at
12random, Goebbels diary entry for 22nd November 1941 --
13Mr Irving, this is from your submissions -- well, you make
14your case in two paragraphs about that. Well, that is
15fine if that is where you want to leave it.
16 MR IRVING:     My Lord, your Lordship will ----
17 MR JUSTICE GRAY:     I am just bit a surprised.
18 MR IRVING:     Your Lordship will find that on several of the
19issues that your Lordship included in your list I have
20made no submission whatever because I am confident to rest
21on what I stated in the witness stand. There has been
22enough paper generated by this case already, and I do not
23think your Lordship will pay overmuch attention to them.
24 MR JUSTICE GRAY:     Well...
25 MR IRVING:     In that particular entry that your Lordship is
26referring to, I think I brought out the salient points.

.   P-21



 1 MR RAMPTON:     So far as we are concerned, my Lord, we delivered
 2to your Lordship, I think, I hope reasonably early
 3yesterday morning, 9/10ths of what we had written. It is
 4although bulky for somebody who has a familiarity with the
 5case such as your Lordship, it does not actually take very
 6long to read.
 7 MR JUSTICE GRAY:     No, I have read it.
 8 MR RAMPTON:     Good. Now there are some few additional pages.
 9 MR JUSTICE GRAY:     Those I have not read because they only
10arrived this morning.
11 MR RAMPTON:     What we have done is to follow as faithfully as
12possible the written scheme which your Lordship drafted
13and, as also your Lordship indicated we should, we have at
14the beginning of each section written an introductory
15passage in most cases.
16     I have no comment to make about what we have
17said, I hardly could since I am one of the principal
18authors of it. Unless it is unclear or wrong, I would not
19at this stage expect to have to say anything more about
20it. I had supposed that it was possible that either your
21Lordship or Mr Irving might have some questions or some
22objections to some part of it. If not, then I have
23nothing more to say about it. I have not anything at all
24to say about Mr Irving's submission (a) because we did not
25have the whole of it when it arrived, I do not know when,
26last night or early this morning, I do not know, and we

.   P-22



 1did not have the whole of it, and (b) I have not read it
 2in any way because I have not had time. We still have not
 3got the whole of it, no.
 4 MR JUSTICE GRAY:     Well, let us not waste more time. Both sides
 5are taking the position they do not want to add anything
 6to what they have submitted in writing and they do not
 7want to say anything about the other side's submission.
 8 MR RAMPTON:     All that I shall do tomorrow is summarize, in
 9effect, and largely not for your Lordship, obviously, for
10the wider public the effect of this fat file because I do
11not suppose for a moment that everybody who might be
12interested is going to read that.
13 MR IRVING:     My Lord, I was going by past experience when
14I prepared this. In 1970, the action I was involved in
15then, Mr David Hurst made his learned submissions to the
16court in his closing speeches which lasted two or three
17hours then Mr Colin Duncan replied on my behalf.
18 MR JUSTICE GRAY:     If I may say so, that was rather different.
19That was a jury action, as I remember, and nobody had to
20make a reasoned judgment at the end of it.
21     Well, that concludes today's business and I do
22apologise to the members of public who came perhaps
23expecting they were going to listen to something today,
24but that is my expectation too and we were all wrong.
25 MR RAMPTON:     We had tried to deal with that. I think, in fact,
26Miss Rogers explained this to your Lordship's clerk, and

.   P-23



 1I am not blaming him if it did not get through at all. We
 2had realized that today might be a non-event which,
 3largely speaking, it has proved to be, and we knew that,
 4as one might say, the big event was going to be tomorrow,
 5so what we did was we actually put out a press release,
 6not only in this country, but in America, in the hope that
 7people would be deterred from coming today and would know
 8that tomorrow was the right day to attend.
 9 MR JUSTICE GRAY:     I remember the problem about having to revise
10the date when you were going to make your, as it were,
11public statements, if I can call them that. The message
12that I am afraid I certainly had not received was that
13today was going to be a non-event because there were not
14going to be any final speeches on either side for my
15benefit as opposed for public consumption. I am really
16surprised, I am bound to say, but there we are.
17 MR RAMPTON:     I would have had something, might have had
18something, to say about Mr Irving's written submission had
19I had it in time and had I read it. I do not know. It
20may be that when we have read it, we may have something to
21say. I rather doubt it. Mr Irving has had the
22opportunity of going through what we have written.
23Apparently, he has nothing to say about it at this stage.
24 MR IRVING:     I opened it here in the courtroom this morning. My
25Lord, can I ask one technical question? Would it assist
26your Lordship if I provided my closing statement on disk?

.   P-24



 1 MR JUSTICE GRAY:     No, I think I am very happy with it in hard
 2copy. Thank you very much.
 3 MR IRVING:     If the order of events was different, I would be
 4quite happy to have started with my closing speech today,
 5but the order of events is that the Defendant has the
 6word, the penultimate word, and I do not think probably we
 7should disturb that.
 8 MR RAMPTON:     The only other thing which I can add, which might
 9be helpful, is that Miss Rogers says, and she must be
10believed, that, if your Lordship has any difficulty
11finding any of the references, ours is, I think, now fully
12referenced and should not a problem, but one knows how it
13is. Documents do disappear, it is a fact of life. Or,
14more particularly perhaps, if a document is referred to in
15Mr Irving's closing submission, we will give every
16assistance to your Lordship in trying to find them during
17the course of today.
18 MR JUSTICE GRAY:     Yes. I do not know what you say in some of
19your sections, but one particular aspect which I think I
20did mention I thought was important and required thought,
21and I certainly had hoped to have some assistance in
22relation to it, was what I think in the end we called
23assessing Mr Irving as an historian. I do not what you
24say in that section, but I think I noticed there is not a
25section at all. You said nothing on that.
26 MR RAMPTON:     I cannot remember which section it is. In fact,

.   P-25



 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.

.   P-26



 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
16substance.
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

.   P-27



 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

.   P-28



 1statement and strongly suggested that section 5 should not
 2apply.
 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

.   P-29



 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

.   P-30



 1those submissions, rather than having odd points batted
 2around, because it is becoming unstructured and completely
 3unhelpful.
 4 MR IRVING:     May I therefore now put to the court by way
 5submission the pages of this relating to Pamyat and
 6Hisbollah and those allegations?
 7 MR RAMPTON:     I really find this very difficult. I have not had
 8Mr Irving's submission long enough even to have had time
 9to look at it. If I had had, I might have had something
10to say about it. It is as simple as that. I do not think
11at this stage in the case it is satisfactory. I am
12leaving aside entirely the inconvenience to your
13Lordship. It is not satisfactory to the other party that
14the Claimant should suddenly stand up and make a row of
15oral submissions.
16 MR IRVING:     My Lord this submission is --
17 MR RAMPTON:     I am sorry, Mr Irving. If Mr Irving has serious
18submissions of fact and law to make about the defence and
19the way in which it is presented, then we should have them
20in writing and in time to respond to them. We have not
21had that opportunity.
22 MR JUSTICE GRAY:     Mr Rampton, I am sorry, I had expected that
23today you would be making your submissions, and you do not
24want to make them.
25 MR RAMPTON:     But they are all in here, both of law and of fact,
26in seriatim and in detail. I have nothing to add to what

.   P-31



 1I wrote.
 2 MR JUSTICE GRAY:     Very well. Subject to either of you, I think
 3I will adjourn now and we will resume tomorrow, but
 4I would like to be absolutely clear in my own mind,
 5because there seems to have been some confusion about
 6today, what it is that is proposed to be done tomorrow.
 7Are we just having statements for public consumption? If
 8so, how long is each side likely to take and is there
 9going to be anything else dealt with tomorrow?
10 MR RAMPTON:     No. I have no present intention and, if I should
11be prompted to change that, of course, I will tell your
12Lordship. I have no present intention of making any
13submissions on the facts or the law that are not contained
14in this file. I therefore intend, with your Lordship's
15permission, to make a relatively short, maybe an hour and
16a half, two hour statement, setting out in summary what
17the Defendants' case is to show that what Professor
18Lipstadt wrote and Penguin published was in substance true
19in every single respect. That includes, for example, the
20Hitler portrait, which is a mere aspect of a wider
21allegation of Hitler partisanship. It includes the
22Stockholm meeting, which in its natural meaning is merely
23a particular example of a much wider picture, that is to
24say adherence to and association with right-wing,
25anti-Semitic principles and people.
26 MR IRVING:     My Lord, I must then ask you to advise me whether

.   P-32



 1tomorrow I should make a separate submission on section 5
 2matters, or whether I can leave it bound up in my closing
 3statement as I do.
 4 MR JUSTICE GRAY:     I would leave it bound up if I were you, but
 5what are you proposing to do? Like Mr Rampton, speak for
 6an hour and a half, two hours?
 7 MR IRVING:     Based upon a cut down version of this text, I will
 8speak the same length as Mr Rampton.
 9 MR JUSTICE GRAY:     Very well. 10.30 tomorrow.
10 (The court adjourned until the following day).
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.   P-33



  

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