Irving v. Lipstadt

 1IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN'S BENCH DIVISION
 2Royal Courts of Justice
 3Strand, London
 4Tuesday, 25th 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)
23(This transcript is not to be reproduced without the written permission of Harry Counsell & Company)
24
25PROCEEDINGS - DAY NINE
26

.    P-1

---

 1<Day 9 Tuesday, 25th January 2000.
 2MR JUSTICE GRAY:    Mr Irving, I have your clip which I obviously
 3have not had time to read. Before we get into that, shall
 4we, as proposed, just look ahead and consider what is
 5going to be happening? We are going to have Professor van
 6Pelt today, is that right?
 7MR RAMPTON:    Yes, my Lord, that right.
 8MR IRVING:    Yes.
 9MR JUSTICE GRAY:    So that the transcript is clear, that is him
10being interposed in order to be called by the Defendants
11and cross-examined because he has commitments elsewhere.
12Is it expected he will be finished in a day?
13MR IRVING:    I doubt it, my Lord. I think two days.
14MR JUSTICE GRAY:    Right. So when will he resume? He cannot be
15here tomorrow, Mr Rampton, can he?
16MR RAMPTON:    He can tomorrow but not Thursday.
17MR JUSTICE GRAY:    So we should get rid of him.
18MR RAMPTON:    If he can be done in two days, so much the better;
19if he cannot, he can come back on Friday.
20MR JUSTICE GRAY:    We have to keep within reasonable bounds so
21I hope he will be finished within two days.
22MR RAMPTON:    Mr Irving's original estimate for him was three
23days. We asked what the estimate was. But, if it is two
24days, so much the better. If we have Friday a blank, as
25it were, then I shall continue cross-examining Mr Irving
26on Friday, I suppose.

.   P-2

---

 1MR JUSTICE GRAY:    Yes.
 2MR RAMPTON:    Then on Monday, Professor McDonald, and I do not
 3know about Dr Fox, it may be him too. I do not know.
 4That is in Mr Irving's hands.
 5MR JUSTICE GRAY:    I cannot remember who Professor McDonald is.
 6MR IRVING:    My expert witness.
 7MR RAMPTON:    He is a social scientist, I think.
 8MR JUSTICE GRAY:    How long is he going to be, just so that you
 9are communicating about timing?
10MR IRVING:    I shall be submitting various documents to him with
11your Lordship's permission, my Lord, and it depends on
12whether Mr Rampton wishes to cross-examine him or not.
13MR JUSTICE GRAY:    He may not know the answer to that until he
14knows in more detail what he is going to say.
15MR RAMPTON:    I have a pretty good idea what he is going to
16say. The answer is if I cross-examine him at all, it will
17be quite shortly, I expect.
18MR JUSTICE GRAY:    And then Fox?
19MR RAMPTON:    I do not know about Mr Fox. That is Mr Irving's
20witness.
21MR IRVING:    I expect Dr Fox will be half a day, my Lord, if
22that.
23MR JUSTICE GRAY:    Right.
24MR RAMPTON:    Then, my Lord, I hope I will be able to complete
25any outstanding issues arising out of Evans and the
26political scientists in the remainder of the four days of

.   P-3

---

 1that week.
 2MR JUSTICE GRAY:    Yes.
 3MR RAMPTON:    I would be disappointed if I do not. I would hope
 4I would be quicker than that.
 5MR JUSTICE GRAY:    I think I would too. I think you have been
 6through the most -- if I can use the word "laborious"
 7without giving offence -- laborious bit.
 8MR RAMPTON:    No, not laborious, perhaps the most important
 9issues anyway.
10MR JUSTICE GRAY:    Distorting history on Hitler.
11MR RAMPTON:    Distorting Hitler and Holocaust denial by means of
12Auschwitz denial.
13MR JUSTICE GRAY:    So at the end of those four days, will that
14complete your cross-examination?
15MR RAMPTON:    Yes, it should do. As your Lordship knows,
16Reichskristallnacht is a bit fiddly.
17MR JUSTICE GRAY:    It is quite convoluted.
18MR RAMPTON:    It is convoluted, exactly, so it may take a bit of
19time. Then, my Lord, we are now being speculative, in a
20sense, provisional, we would hope to start our evidence,
21excluding Professor van Pelt, on Monday, whatever it is of
22February, with possibly Professor Browning, possibly
23Dr Longerich, possibly Professor Evans, I do not know.
24Then I think perhaps the only political scientists we will
25call as a witness is Fulkhan, the German. But that is a
26little bit in the future.

.   P-4

---

 1    I have put question marks against Levin and
 2Eatwell and also against the Russian witness Tarasov
 3because, quite frankly, having regard to the witness
 4statement of Mr Irving's witness, the journalist, Peter
 5Miller, I do not think Mr Tarasov has anything to add at
 6all.
 7MR JUSTICE GRAY:    I will say again that I think in relation to
 8the Moscow diaries some sort of accommodation might be
 9possible.
10MR IRVING:    My Lord, I do wish to make certain fundamental
11observations about the way the case is being conducted so
12far. I do not know if this is the appropriate moment.
13MR JUSTICE GRAY:    I think now is probably the moment for you to
14do that, unless you would rather reserve it for later?
15MR IRVING:    It is brief but to the point, my Lord. I am the
16Claimant in this action. This is my action, and I spent
17yesterday evening indulging in a little bit of light
18reading in the Civil Procedure Rules and my eye alighted
19on Lord Woolf's wise words towards the beginning of the
20introduction to the Rules which states that all steps have
21to be taken to ensure complete equity between the parties.
22MR JUSTICE GRAY:    Of course. That is my major function.
23MR IRVING:    It is a major departure from the old system. He
24said, he identified a range of defects in the existing
25civil justice system, the third of which was that it was
26too unequal in that there was a lack of equality between

.   P-5

---

 1the powerful, wealthy litigant and the under-resourced
 2litigant.
 3    My Lord, I am up against a powerful, wealthy
 4litigant here, as evidenced by the fact that I stand here
 5alone and on the other side of your Lordship's court are
 6sometimes between 20 and 40 experts, researchers,
 7solicitors, learned counsel, arrayed against me ----
 8MR JUSTICE GRAY:    That had not escaped my notice.
 9MR IRVING:    --- funded by the most enormous resources.
10Somehow, the sequence of events has got reversed. Your
11Lordship will remember that when we embarked on this two
12and a half weeks ago, we were looking at the prospect of
13holding off Auschwitz until towards the end of the
14discussions, but now Auschwitz has somehow come right up
15in front.
16    Their witnesses have been interspersed in the
17middle of my presentation of the case. It now turns out
18that Professor Robert Jan van Pelt is here at this time
19purely because it is convenient to him because he is going
20on a Holocaust junket to Stockholm on Thursday together
21with the Second Defendant. I do not see why I should be
22inconvenienced in this way, my Lord. I do not, frankly,
23understand why your Lordship is tolerating it.
24MR JUSTICE GRAY:    Partly, Mr Irving, because you have not until
25now raised any objection. We have been discussing for
26some days now when Dr Van Pelt might give his evidence.

.   P-6

---