Irving v. Lipstadt

 1IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN'S BENCH DIVISION
 2Royal Courts of Justice
 3Strand, London
 4Tuesday, 18th January 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)
23PROCEEDINGS - DAY FIVE
24
25
26

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 1<DAY FIVE Tuesday, 18th January 2000
 2(10.30 a.m.)
 3MR JUSTICE GRAY:    Yes, Mr Irving, I have been provided with a
 4document that you, I understand, want to make some mention
 5of.
 6MR IRVING:    Yes, if I may address the court on this. The only
 7important one I want to draw your attention to is page 10.
 8MR JUSTICE GRAY:    Before you do, can I just mention two things
 9which will take a few minutes? Do sit down. The first is
10the transcription which, once they have been edited, are
11extremely useful and I think it is extraordinary that it
12can be done so well.
13MR RAMPTON:    So do I.
14MR JUSTICE GRAY:    But it did strike me, reading yesterday's
15transcript, that the first 20 minutes of yesterday was
16what you might call administrative discussion, and I think
17it is a waste of energy to have that transcribed.
18MR RAMPTON:    Yes.
19MR JUSTICE GRAY:    Unless either of you disagree, I was going to
20suggest that in future when we have that kind of
21discussion we can just, as it were, stand down the lady
22who is doing the transcribing, and save her energy.
23MR IRVING:    Except, my Lord, for any conclusions that are
24reached.
25MR JUSTICE GRAY:    Of course, and any what you might call
26substantive discussion about the issues.

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 1MR RAMPTON:    Can I also suggest this? If at any stage your
 2Lordship makes rulings which you may have to -- I hope not
 3but it does happen -- they be transcribed separately as a
 4separate document.
 5MR JUSTICE GRAY:    Yes, if and when we come to that, that is a
 6very good idea.
 7MR RAMPTON:    It worked very well last time that this lady was
 8in charge of one of my cases.
 9MR JUSTICE GRAY:    Can I also, before Mr Irving deals with this
10document, ask you, Mr Rampton, to help me as to where we
11are at the moment.
12MR RAMPTON:    Where are we going?
13MR JUSTICE GRAY:    Yes. Can I just tell you what my concern
14is. It is that I should know at every stage, if possible,
15to what issue the evidence is directed. Your
16cross-examination started out with the topic of the
17killing of the Jews from Berlin.
18MR RAMPTON:    Yes.
19MR JUSTICE GRAY:    But it has now moved on to the shootings on
20the Eastern Front.
21MR RAMPTON:    Yes.
22MR JUSTICE GRAY:    I am just trying to tie it in with your
23summary of case. I want to make sure I have understood
24correctly, because the section on shootings on the Eastern
25Front is in the part of your summary of case which deals
26with Auschwitz, whereas, as I understand it, the evidence

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 1that you are eliciting from Mr Irving at the moment is
 2really directed mainly to the issue of Hitler's knowledge.
 3MR RAMPTON:    The trouble is, of course, that it has both sides
 4to it, as does gassing.
 5MR JUSTICE GRAY:    Because your case is, just so that
 6I understand, that the mass shootings, were a prelude to
 7an alternative way of killing Jews, namely gassing.
 8MR RAMPTON:    Largely speaking but by no means entirely, gassing
 9took over from shooting. Both are features of what is
10called the Holocaust and both happened on such a scale,
11logistically speaking and military speaking, that they
12must have come from headquarters, so the whole thing locks
13together.
14MR JUSTICE GRAY:    That has helped me understand how the case is
15put.
16MR RAMPTON:    Apart from one or two fiddly things which always
17happen arising from yesterday, I am going to deal with the
18table talks such as remain, not many. Then I am going to
19go on to what happened next, as it were, 42 onwards to
20about September 42.
21MR JUSTICE GRAY:    It will, I think, sometimes help me if one
22can see the big picture, perhaps by way of a few prefatory
23questions, and then go to the individual documents.
24MR RAMPTON:    One of the fiddly but necessary features in all of
25this is that one repeatedly has to make reference to what
26Mr Irving himself has said about these things ----

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 1MR JUSTICE GRAY:    Yes, of course.
 2MR RAMPTON:    --- which clouds the picture, but is unavoidable.
 3MR JUSTICE GRAY:    Of course. I quite understand that. Yes,
 4thank you. Mr Irving, do you want to say anything about
 5that exchange? It was really to clarify my own
 6understanding of where exactly we are going to and getting
 7to with the evidence.
 8MR IRVING:    I agree, my Lord. What we in Riding call a topic
 9paragraph would be useful.
10MR JUSTICE GRAY:    It would certainly help me and it might even
11be that it will help you. It might be that it is right
12that you should have the opportunity to comment on the
13general proposition as well as the particular proposition.
14MR IRVING:    Very well.
15MR JUSTICE GRAY:    You want to say something about this
16document?
17MR IRVING:    My Lord, I referred yesterday to the fact that
18I relied on the Weidenfeld translation of Hitler's table
19talk. It is completely proper that I should produce that
20translation to you, which is page 2. You will see it from
21the rostrum at the Reichstag, and so on.
22MR JUSTICE GRAY:    Yes.
23MR IRVING:    I do not attach anything in particular but, for
24reasons of procedure, I should have shown that to you,
25having averred that I had used that translation.
26MR JUSTICE GRAY:    Yes, I see. Thank you very much.

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 1MR IRVING:    My Lord, on page 3 I referred to a document in the
 2December 1942 time frame, which is so important because
 3that is when this meldung, this report, was allegedly
 4shown to Hitler at the end of December, but here is Hitler
 5at the same time ordering that Jews should be released if
 6foreign currency could be provided to barter for them.
 7MR JUSTICE GRAY:    They are not mutually exclusive, those two
 8policies, are they?
 9MR IRVING:    I appreciate that, my Lord, but, if the contention
10of the Defence is that Adolf Hitler was hell bent on
11exterminating every Jew that came into his possession, for
12some reason of weltanschauung or a deeper philosophy or a
13deeper streak of human nature, there are several documents
14of this nature which of course go through to the famous
15trucks for Jews deal at the end of 1944, which indicates
16that he was not all that pragmatic.
17MR JUSTICE GRAY:    I do not understand the Defendants to put the
18case, as it were, at that extreme level.
19MR RAMPTON:    Not at all.
20MR IRVING:    Well, it just is not watertight either way. My
21Lord, I keep trying to drive breaches into the damages of
22defence. We have a much more serious breach coming on
23page 10, my Lord.
24MR JUSTICE GRAY:    Shall I go straight to 10?
25MR IRVING:    Except to have a quick glance at pages 8 and 9
26which is another meldung in that series. It shows Hitler

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