Outline submissions on behalf of the First Defendant
15th May 2001
The applications before the Court of Appeal
1. The Claimant (“Irving”) has two applications before the Court of Appeal:
1.1 Application for permission to appeal dated May 2000 (as amended in August 2000). The trial judge, Gray J, had refused permission to appeal on April 2000. Irving’s grounds are set out in the Skeleton Argument dated 2nd August 2000.
- Under a direction made by Sedley LJ, the First Defendant made submissions in response to Irving’s skeleton argument (6th September 2000) to which Irving replied (3rd October 2000).
- On 18th December 2000, Sedley LJ refused Irving permission to appeal, giving detailed reasons.
- Irving has renewed his application for permission to appeal at an oral hearing before the Court of Appeal.
1.2 Application for permission to adduce fresh evidence at the hearing of the application for permission to appeal (and, if successful, the appeal) dated 1st March 2001.
- The application is supported by a witness statement from Irving (27th February 2001) and a skeleton argument dated 1st March 2001 (Adrian Davies)
- The fresh evidence consists of a 384-page witness statement from Germar Rudolf (a chemist) and a short statement from Zoe Polanska-Palmer (who claims to have been at Auschwitz).
These submissions deal shortly with Irving’s second application (fresh evidence). However, for the reasons set out below, there is some overlap between the two applications.
The power of the Court of Appeal to admit fresh evidence
2. So far as the admission of fresh evidence is concerned, the CPR provides1:
“Unless it orders otherwise, the Court of Appeal will not receive:
- oral evidence; or
- evidence which was not before the lower court.”
Although there is no requirement of “special grounds” under the CPR (contrast RSC Order 59 rule 10(2), which applied formerly), the principles set down in Ladd v Marshall  1 WLR 1489 at 1491 continue to have powerful persuasive force. The relevant conditions are:
“To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
The Ladd v Marshall principles remain relevant to the Court of Appeal’s discretion when deciding whether or not to admit fresh evidence: see Hertfordshire Investments v Bubb  1 WLR 2318.2 At page 2324, Hale LJ said:
“There are, of course, strong reasons for this approach, which has a long pedigree. It is in the interests of every litigant and the system as a whole that there should be an end to litigation. People should put their full case before the court at trial and should not be allowed to have a second bite at the cherry without a very good reason indeed.”
At page 2325 Hale LJ noted that “strong grounds” were required for the admission of fresh evidence.
3. The First Defendant submits that it is for Irving to establish that each of the Ladd v Marshall tests is fulfilled and that he has not done so. So far as Rudolf is concerned, not only could the “new” evidence have been obtained with reasonable diligence for use at the trial (first test), it was in fact already available to Irving for that purpose. The evidence of Rudolf and/or Polanska-Palmer would not have had an important influence on the result of the case (second test); and their evidence is not apparently credible (third test).
4. There is obviously an overlap in this case between the second test and the question whether the original grounds of appeal disclose any real prospect that the appeal might succeed2. The reason is that the “new” evidence relates to but one issue in the case (Auschwitz), so that its potential for having an “important influence on the result of the case” must be judged against all the other issues which were decided against Irving, including those which are the subject of the original grounds of appeal. If those grounds of appeal disclose no real prospect of success, then the only remaining question is whether the “new” evidence (assuming, which is denied, that it passes the first and third tests) is in itself so potentially influential on the result of the case that it must nonetheless be admitted For reasons which are given below, that question should be answered in the negative.
The questions for the Court of Appeal
5. The First Defendant submits that the Court of Appeal should consider the following questions:
- Has Irving shown that the fresh evidence could not have been obtained with reasonable diligence for use at the trial (first Ladd v Marshall test)?
If this question is resolved in the First Defendant’s favour, the court should exclude the “new” evidence on that ground alone, leaving only the question(s) arising from the original grounds of appeal to be decided. The next question for the court would then be (4) below.
- Has Irving shown that the fresh evidence would probably have had an important influence on the outcome of the case (second test)?
In order to deal with this question, the Court of Appeal would need to form a clear view of the case overall and of the merits of the original grounds of appeal. If those grounds have no merit, then all that remains is to see what, if any, weight the “new” evidence might have against the overall effect of the judgment (see paragraph 4 above).
- Has Irving shown that the fresh evidence is apparently credible (third test)?
To an extent, this question falls for consideration with question (2) above. For if the “new” evidence is not credible in any significant respect, it is clear that that would necessarily involve a negative answer to question (2). And if the answer to question (2) is negative in any event, then question (3) becomes immaterial.
- Has Irving established that there is any point arising from the original notice of appeal which has any real prospect of success?
In reliance on the Defendants’ written submissions of 6th September 2000 and the reasons given by Sedley LJ on 18th December 2000, the First Defendant submits that the answer is “no”.
6. The First Defendant wishes to rely upon the witness statements served by the Second Defendant on 27th April 2001, that is, witness statements from Professor van Pelt, Dr Richard Green and James Libson, as well as the witness statement of Mark Bateman served on 15th May 2001, in respect of the application to adduce fresh evidence.
(1) Could the fresh evidence have been adduced at trial?
7. A short chronology showing some of the contact between Irving and Rudolf is attached to these submissions.
8. So far as Rudolfs evidence is concerned, the position appears to be this:
8.1 Paragraph 6 of the skeleton argument (dated 1st March 2001) served on behalf of Irving in support of his application to adduce this evidence makes it clear that Rudolf’s witness statement is founded upon an earlier analysis by him of “the improbability or outright impossibility of the established historiography of Auschwitz”. Irving knew of that analysis and had a copy of it (he posted a complete copy of the 1993 Rudolf Gutachten on his website in July 1999, but the evidence is that Irving was aware of it considerably earlier). There is nothing of any significance in Rudolf’s current witness statement which is new; virtually all of it is based on material which was available before trial (see the witness statements of James Libson, Mark Bateman and the attached chronology).
8.2 Irving could have applied to put in an expert report from Rudolf at trial, but he did not do so. He did put in evidence (without objection from the Defendants) what purported to be a short account of the Rudolf Report, written by someone other than Rudolf. There is no explanation of his failure to apply to submit in evidence the full report itself (or any subsequent witness statement).
8.3 At pages 333 (line 12) to 334 (line 7) of his witness statement, Rudolf makes it clear that he would have appeared under subpoena as an expert witness for Irving, had Irving asked him to do so. He was not asked to appear as a witness, although he was asked to assist as an adviser. He supplied Irving with comments, which Irving used to cross-examine Professor van Pelt (again, the material supplied appears to form part of his current witness statement).
9. Thus the decision not to call Rudolf as a witness and/or to seek to put in a written statement from him and/or the original Rudolf Report was entirely Irving’s own decision. it is therefore clear that the whole of Rudolf s evidence could have been before the court (and that some of it was before the court). It follows that there is no reason why it should now be admitted. On the contrary, there is good reason why it should not be (see the observations of Hale LJ)
(2)/(3) Is the “new” evidence apparently credible and would it probably have (had) an important influence on the result of the case?
10. The evidence of Rudolf and of Polanska Palmer deals only with Auschwitz. The relevance of Auschwitz to the case as a whole was summarised in the Defendants’ response to the skeleton argument of 6 September 2000, paragraphs 52-54 (pages 13-14).
11. Rudolf’s approach is highly selective: he makes a number of small, discrete points, which do not address, still less disturb, the overall convergence of evidence described by van Pelt. As van Pelt points out. Rudolf takes no account of the historiography of Auschwitz, and provides no coherent alternative narrative which is apt to accommodate his various hypotheses. Moreover, Rudolf’s hypotheses are to a large extent mutually contradictory, as well as historically, scientifically and logically wrong. Van Pelt in his witness statement deals in detail with the substance of Rudolf’s witness statement, other than sections J and K, which are dealt with by Dr Green. A summary of the effect of van Pelt’s and Green’s responses to Rudolf is attached to these submissions. In the result, it can be seen that Rudolf s witness statement makes no credible impact on the evidence about Auschwitz that was given at trial or the judge’s findings based upon that evidence.
12. Dr Green deals with sections J and K of Rudolf’s witness statement.
- Rudolf does not claim his chemical analysis is decisive (even if it were correct). He has said “Chemistry is not the science which can prove or refute any allegations about the Holocaust ‘rigorously'” (see Green page 59; see also Rudolf page 250);
- There is an issue as to whether or not his chemical analysis is correct. Rudolf does not demonstrate that he is more likely to be right than Green (or Markiewicz).
- Since no-one contends that the chemistry is decisive, the issue of Prussian blue staining (upon which Rudolf s hypothesis depends), when placed in the context of the whole of the evidence about Auschwitz, becomes inconsequential. The reasons for the absence of such staining in the gas chambers must be sought elsewhere. Such reasons have been convincingly proposed by Green and Markiewicz, who have shown that significant traces of cyanide may be found even where there is no blue staining.
13. The judge’s overall conclusion, based on the evidence at trial, was in effect that Irving embarked on a mission to sink the “Battleship Auschwitz” without having any grounds to do so. Irving wholeheartedly embraced the Leuchter report as soon as it appeared and continued resolutely to adhere to it, even though he had received devastating critiques from others (including, most notably, Colin Beer) and even though, as he accepted at trial, it was largely worthless as evidence.
14. As was common ground at trial, what mattered in assessing Irving’s honesty and integrity as an historian was the material he had before him when he wrote his books and made his statements. This was a subjective question and the Defendants proved that Irving’s stance on Auschwitz from 1988 onwards was not based on any credible historical or scientific grounds. The “new” chemical evidence contained in sections J and K of Rudolf’s witness statement makes no difference.
15. In any event there was abundant evidence that Irving had, for his own ideological reasons, “persistently and deliberately misrepresented and manipulated historical evidence” in order to exculpate Hitler (Judgment 13.167). As Sedley Li put it (see paragraph 11 of his written reasons) this was “the central issue” in the case. It follows that, even if the “new” evidence were admitted and accepted as being credible, it could not have “an important influence on the result of the case.”
16. Even if her witness statement were wholly accurate and reliable, it would have no impact on the Auschwitz issue, since it is both tentative and wholly negative: all that she says, in effect, is that she did not actually see any gas chambers while she was at Auschwitz (although she did hear rumours of them and the Kapos speak of them) This proves nothing and certainly cannot provide an answer to the mass of positive evidence adduced by van Pelt. In any event, as the witness statement of James Libson demonstrates (paragraphs 81-87, pages 30-33), the inconsistencies between Mrs Potanska Palmer’s present witness statement and her earlier autobiography are such that no reliance can safely be placed on her evidence. Thus her evidence is neither capable of having any influence on the outcome of the case nor credible.
17. The First Defendant submits that the Court of Appeal should dismiss Irving’s applications.
Richard Rampton QC
1 Brick Court, Temple Heather Rogers Matrix Chambers, Gray’s Inn 15th May 2001
1. CPR Pr 52 52.11(2); 2001 CPR page 993
2. In giving a ruling on 17th January 2001 in this case, Sedley LJ stated that “the principles stated Ladd v Marshall remain relevant, not as rules, but as matters necessarily to be considered in the exercise of the Court’s discretion to allow further evidence on appeal in accordance with the overriding objective.” The Court of Appeal had taker the same view in Hamilton v Ai Fayed (no 4) CA  EMLR 15.
3. See CPR Pt 52.3(5), 2001 CPR page 384 (when permission to appeal will be granted by the Court of Appeal).
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