Irving v. Lipstadt

 1IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN'S BENCH DIVISION
 2Royal Courts of Justice
 3Strand, London
 4Thursday, 24th February 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 TWENTY-FIVE
26

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 1<Day 25.
 2(10.00 a.m.)
 3< DR LONGERICH, recalled.
 4< Cross-Examined by Mr Irving, continued.
 5MR JUSTICE GRAY:    Mr Irving?
 6MR IRVING:    May it please the court. My Lord, you requested
 7yesterday that I should state my position on the
 8Einsatzgruppen and I place before your Lordship a two-page
 9summary of my position. I do not know whether your
10Lordship wishes to address it now? I gave a copy to
11Mr Rampton. If Mr Rampton wishes to address it now, then
12I would be perfectly happy to discuss with him.
13MR JUSTICE GRAY:    I think it is sensible to have a look at it
14now because it just could affect some of the
15cross-examination later today. (Pause for reading) I am
16bound to say that I think that differs very, very
17substantially from the position that you seem to have
18adopted in your cross-examination by Mr Rampton.
19MR IRVING:    Does it? In which respect?
20MR JUSTICE GRAY:    It seems to me that this is a rather partial
21acknowledgment of Hitler's knowledge and therefore
22responsibility for what went on in the Eastern
23territories.
24MR IRVING:    Of course I did not mention the October 1943
25watershed, that is true.
26MR JUSTICE GRAY:    Do not worry about that because you accepted

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 1everything, as it were, after that. Mr Rampton?
 2MR RAMPTON:    I regard it as a fairly enormous step backwards.
 3However, it does not trouble me in the very slightest,
 4I have to say, because by a combination of the actual
 5evidence of what was happening at the time and what
 6Mr Irving said when first confronted with it, I am quite
 7happy to leave that matter to be made by way of submission
 8at the end of the case.
 9MR JUSTICE GRAY:    I think that is right and it seemed to me
10that, when you were saying you might have to recall
11Browning and so on, I do not think that is right.
12MR RAMPTON:    No, it was off the cuff and it was not meant
13interrorem, but it was a thought that occurred to me.
14I think actually, having regard to this, that this is so
15inconsistent, in my submission, with what was first said
16in cross-examination, that I am happy to leave it like
17that.
18MR JUSTICE GRAY:    I think it is a matter for comment later on.
19Mr Irving, that must be right. To the extent that there
20is a difference between the position you took in
21cross-examination and this document, then Mr Rampton
22obviously must be entitled to make whatever comment he
23thinks fit.
24MR IRVING:    Or indeed to cross-examine me further on that
25document.
26MR JUSTICE GRAY:    He may want to do that, I do not know.

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 1Probably not I guess. Anyway, I have that now. Again
 2I think it is sensible to try to work out where it should
 3go. I think probably it goes in -- this is really for the
 4transcript so that everybody knows where it is --
 5MR IRVING:    L, was it not?
 6MR JUSTICE GRAY:    I was thinking more, because in a way it is
 7statement of your case, I wonder whether it belongs in C
 8or, indeed, in the pleadings. I think that is right. I
 9will tuck it behind your defence in bundle A.
10MR IRVING:    Very well, my Lord.
11MR JUSTICE GRAY:    Thank you very much for doing that anyway.
12When I say "defence", I mean, of course, reply, tab 4.
13Yes. Is there anything else before you resume?
14MR IRVING:    No, I can begin cross-examination.
15< Dr Peter Longerich, Recalled
16< Cross-examination by Mr Irving, continued.
17Q. [Mr Irving]     Dr Longerich, good morning.
18A. [Dr Heinz Peter Longerich]     Good morning.
19Q. [Mr Irving]     We touched yesterday briefly on the existence in the
20Institut fur Zeitgeschichte of manuscripts written by Karl
21Wolff. You said that it was of a confidential nature and
22that it was not open for general research. I stated that
23in my discovery there had been extracts or a transcript of
24part of that. Can I ask you to look at the little bundle
25I just gave you? My Lord, this is on page 14 of the
26little bundle which is in sections.

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 1MR JUSTICE GRAY:    Is this a manuscript? Manuscript, Karl
 2Wolff, I see.
 3MR IRVING:    Yes. If you go to page 16, which is the last page
 4in that little clip, you will see a handwritten version of
 5it. That is the original German. Page 14 is the original
 6German transcript.
 7A. [Dr Heinz Peter Longerich]     May I ask, is this your transcript?
 8Q. [Mr Irving]     Yes, that is my handwriting.
 9A. [Dr Heinz Peter Longerich]     So I have to rely on Mr Irving's summary?
10Q. [Mr Irving]     Yes, extracts.
11A. [Dr Heinz Peter Longerich]     I have to say I am not happy with that because, as we
12experienced yesterday, Mr Irving tends to shorten
13documents and I do not agree with him on the principles in
14the way he shortens documents. I am not very happy to
15comment on his transcripts or excerpts from documents.
16I would like to see the original.
17Q. [Mr Irving]     If you look at line 6, you will see that I have put three
18dots, and line 7 I have three dots.
19A. [Dr Heinz Peter Longerich]     Yes, but I have not seen the original, so I cannot ----
20Q. [Mr Irving]     You stated, of course, that you were not permitted to see
21the original because it was a confidential document.
22A. [Dr Heinz Peter Longerich]     Yes. Still I would like to see the original.
23MR JUSTICE GRAY:    I think I know what the problem is. Where is
24the original, Mr Irving?
25MR IRVING:    It is in the Institut fur Zeitgeschichte in Munich.
26MR JUSTICE GRAY:    To which Mr Irving does not have access.

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 1I take your point entirely, Dr Longerich, but shall we
 2just see what the question is and see whether you can
 3cope. If you do not feel you can ----
 4MR IRVING:    My position would be of course, my Lord, that this
 5was the document that was before me when I was writing my
 6book, this handwritten extract.
 7A. [Dr Heinz Peter Longerich]     But you were allowed to make photocopies from the
 8document. I would really prefer to see a photocopy instead
 9of your handwritten notes on the document.
10MR JUSTICE GRAY:    Do you have a photocopy, Mr Irving?
11MR IRVING:    No, my Lord. I was not allowed to make photocopies
12on this particular one.
13MR JUSTICE GRAY:    Proceed fairly cautiously. What is the
14point?
15MR IRVING:    If you will now look at the translation, which is
16on page 10, this is an explanation, is it not? It is an
17extract, first of all, from a confidential manuscript by
18Karl Wolff dated May 11th 1952, and he is referring to the
19effect on Himmler of the assassination of Heydrich. In
20the second paragraph Wolff expresses the rather
21extraordinary view that perhaps 70 men all told from
22Himmler to Hoess were involved in the extermination of the
23Jews. Then there is something which I put in quotation
24marks. The inference is that it is actually words from
25the document: "Bormann and Himmler probably represented
26the view that the Jewish problem had to be dealt with

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