Irving v. Lipstadt

 1MR JUSTICE GRAY:    I do not seem to have F. Yes. So I put this
 2in the back?
 3MR IRVING:    That is correct, my Lord. Mr Rampton's
 4intervention, of course, has highlighted the problem that
 5I face in view of the fact that the representative of the
 6Centre for Democratic Renewal and the Coalition for Human
 7Dignity who gave statements relied which have been relied
 8upon by Professor Levin, those statements are not sworn.
 9They are just put in by way of evidence. They are relied
10on by Professor Levin. Professor Levin is not going to
11give oral evidence, so I cannot test the validity of any
12of the statements that Mr Rampton has made or any of the
13statements these witnesses have made.
14MR JUSTICE GRAY:    Professor Levin, who is not coming to give
15evidence, I had understood (and perhaps I am wrong about
16this and perhaps we can clarify now) that his report is no
17longer relied on.
18MR RAMPTON:    No, that is not right. There is a Civil Evidence
19Act Notice.
20MR JUSTICE GRAY:    For an expert?
21MR RAMPTON:    Yes, in respect of that. What weight it has is
22another question, but it has to be a 1968 Act Notice
23because this case was started before the 1995 Act came
24into force. So there is a Civil Evidence Act statement in
25respect of Professor Levin.
26MR JUSTICE GRAY:    It is highly unusual to have an expert's

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 1report subject to the Civil Evidence Act.
 2MR RAMPTON:    It may be unusual but ----
 3MR JUSTICE GRAY:    I do not know whether I have ever heard of it
 4before.
 5MR RAMPTON:    --- there is nothing the matter with it in
 6principle.
 7MR JUSTICE GRAY:    That may be right.
 8MR IRVING:    It does place me at a serious disadvantage, of
 9course.
10MR JUSTICE GRAY:    I know. Actually, I thought the disadvantage
11was less great than it now appears to be because I had
12wrongly taken it (and I am glad I have now discovered my
13error) that the Defendants were not any longer relying on
14Levin and Eatwell.
15MR RAMPTON:    If I can say this, quite frankly, I do not myself
16believe I need to depend very heavily on Professor Levin
17anyway for ----
18MR JUSTICE GRAY:    I think that is probably right.
19MR RAMPTON:    --- quite different reasons. The factual
20witnesses probably, so far as the United States and Canada
21are concerned, are more important.
22MR JUSTICE GRAY:    Yes. To help you with your difficulty,
23Mr Irving, can I suggest this, that when you come to be
24cross-examined, as you will be I think on ----
25MR IRVING:    Next week sometime.
26MR JUSTICE GRAY:    --- the sort of rogues' gallery point, if

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 1I can rudely call it that, namely your associating with
 2these extremists.
 3MR IRVING:    Guilt by association.
 4MR JUSTICE GRAY:    Yes, well, that is the way you put it. I am
 5not sure it is as simple as that.
 6MR IRVING:    It is the way Morland J would put it probably too.
 7MR JUSTICE GRAY:    Well, you might then take the opportunity,
 8either in cross-examination or perhaps re-examining
 9yourself, to make the points you are wanting to make in
10reference to Professor Levin or Dr Levin's report.
11MR IRVING:    I was proposing to make it by way of submission.
12MR JUSTICE GRAY:    All right. You can do it that way as well or
13instead, rather.
14MR IRVING:    But is a rather unfortunate halfway house that he
15is going to partly rely on Mr Levin's report, and we have
16no way of knowing which part he is relying on and which
17part he is not. Either he should or he should not, in my
18view, my Lord, and your Lordship may wish to make a ruling
19on that.
20MR JUSTICE GRAY:    Well, you may want to make the application
21that it is not legitimate for a party to use the Civil
22Evidence Act machinery to avoid having the expert witness
23in question called and cross-examined.
24MR IRVING:    Now that we are under the CPR, as we are, I think
25it should be either or.
26MR JUSTICE GRAY:    Well I am not going to that now because

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 1Professor Evans is, no doubt, wanting to get on with his
 2evidence, but if you want to make that application, feel
 3free to do so. But, as I say, I think it is unusual.
 4Yes, now, are we ready to resume?
 5MR IRVING:    One more minor matter, your Lordship asked to see
 6the index of the Hitler's War books, the new version, and
 7that also appended as -- it is the very last page of what
 8you have.
 9MR JUSTICE GRAY:    When you say the "new" version, the one that
10is about to come out?
11MR IRVING:    No, this was an index we commissioned for the 1991
12edition, in other words, it is a fuller index for 1991.
13MR JUSTICE GRAY:    I see.
14MR IRVING:    It has now been superceded because we are about to
15do a completely updated edition.
16MR JUSTICE GRAY:    So this is just the extract dealing with...
17MR IRVING:    That, I presume, is the page that your Lordship was
18interested in.
19MR JUSTICE GRAY:    Yes, you are quite right.
20MR IRVING:    Also, finally, my Lord, if you look two items back
21from that, your Lordship will find The Spectator.
22MR JUSTICE GRAY:    Is this "as many as"?
23MR IRVING:    "As many as", yes, my Lord. Your Lordship will see
24that I was absolutely correct; either Professor Eatwell or
25Professor Levin or both omitted the word which completely
26reversed the meaning.

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 1MR JUSTICE GRAY:    Yes. Professor Evans, this is a point at
 2which I think you ought to join in, if I can put it like
 3that. I think, Mr Irving, the point he made yesterday is
 4right?
 5A. [Professor Richard John Evans]     It is right, yes, indeed.
 6MR IRVING:    Is it right to say that I, therefore, did not
 7double the death roll by means of the comparison, in
 8fact? I adhered to a death roll in Hamburg of up to or
 9nearly 50,000?
10A. [Professor Richard John Evans]     That is right, yes.
11MR JUSTICE GRAY:    Not, I think, your error, but Professor
12Eatwell's?
13A. [Professor Richard John Evans]     It looks like it, my Lord.
14MR IRVING:    My Lord, the problem is Professor Evans' report has
15turned out to be a bit of a dummy minefield. I am
16advancing into it, but very gingerly, because I do not
17know where the real mines are and where the dummies are
18like that one, and this is what is delaying us.
19MR JUSTICE GRAY:    I am not sure I accept any of that, but let
20us move on anyway. We have got to about 100?
21MR IRVING:    128, my Lord, is where I propose to continue, my
22Lord. I am on 128 at paragraph 4, Professor Evans.
23MR JUSTICE GRAY:    You are still on the topic of Holocaust
24denial, are you not?
25MR IRVING:    We are, my Lord, and we are dealing just briefly
26with the experiment made with the gas vans. Your Lordship

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