Irving v. Lipstadt

 1MR RAMPTON:    So far as we are concerned, my Lord, we delivered
 2to your Lordship, I think, I hope reasonably early
 3yesterday morning, 9/10ths of what we had written. It is
 4although bulky for somebody who has a familiarity with the
 5case such as your Lordship, it does not actually take very
 6long to read.
 7MR JUSTICE GRAY:    No, I have read it.
 8MR RAMPTON:    Good. Now there are some few additional pages.
 9MR JUSTICE GRAY:    Those I have not read because they only
10arrived this morning.
11MR RAMPTON:    What we have done is to follow as faithfully as
12possible the written scheme which your Lordship drafted
13and, as also your Lordship indicated we should, we have at
14the beginning of each section written an introductory
15passage in most cases.
16    I have no comment to make about what we have
17said, I hardly could since I am one of the principal
18authors of it. Unless it is unclear or wrong, I would not
19at this stage expect to have to say anything more about
20it. I had supposed that it was possible that either your
21Lordship or Mr Irving might have some questions or some
22objections to some part of it. If not, then I have
23nothing more to say about it. I have not anything at all
24to say about Mr Irving's submission (a) because we did not
25have the whole of it when it arrived, I do not know when,
26last night or early this morning, I do not know, and we

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 1did not have the whole of it, and (b) I have not read it
 2in any way because I have not had time. We still have not
 3got the whole of it, no.
 4MR JUSTICE GRAY:    Well, let us not waste more time. Both sides
 5are taking the position they do not want to add anything
 6to what they have submitted in writing and they do not
 7want to say anything about the other side's submission.
 8MR RAMPTON:    All that I shall do tomorrow is summarize, in
 9effect, and largely not for your Lordship, obviously, for
10the wider public the effect of this fat file because I do
11not suppose for a moment that everybody who might be
12interested is going to read that.
13MR IRVING:    My Lord, I was going by past experience when
14I prepared this. In 1970, the action I was involved in
15then, Mr David Hurst made his learned submissions to the
16court in his closing speeches which lasted two or three
17hours then Mr Colin Duncan replied on my behalf.
18MR JUSTICE GRAY:    If I may say so, that was rather different.
19That was a jury action, as I remember, and nobody had to
20make a reasoned judgment at the end of it.
21    Well, that concludes today's business and I do
22apologise to the members of public who came perhaps
23expecting they were going to listen to something today,
24but that is my expectation too and we were all wrong.
25MR RAMPTON:    We had tried to deal with that. I think, in fact,
26Miss Rogers explained this to your Lordship's clerk, and

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 1I am not blaming him if it did not get through at all. We
 2had realized that today might be a non-event which,
 3largely speaking, it has proved to be, and we knew that,
 4as one might say, the big event was going to be tomorrow,
 5so what we did was we actually put out a press release,
 6not only in this country, but in America, in the hope that
 7people would be deterred from coming today and would know
 8that tomorrow was the right day to attend.
 9MR JUSTICE GRAY:    I remember the problem about having to revise
10the date when you were going to make your, as it were,
11public statements, if I can call them that. The message
12that I am afraid I certainly had not received was that
13today was going to be a non-event because there were not
14going to be any final speeches on either side for my
15benefit as opposed for public consumption. I am really
16surprised, I am bound to say, but there we are.
17MR RAMPTON:    I would have had something, might have had
18something, to say about Mr Irving's written submission had
19I had it in time and had I read it. I do not know. It
20may be that when we have read it, we may have something to
21say. I rather doubt it. Mr Irving has had the
22opportunity of going through what we have written.
23Apparently, he has nothing to say about it at this stage.
24MR IRVING:    I opened it here in the courtroom this morning. My
25Lord, can I ask one technical question? Would it assist
26your Lordship if I provided my closing statement on disk?

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 1MR JUSTICE GRAY:    No, I think I am very happy with it in hard
 2copy. Thank you very much.
 3MR IRVING:    If the order of events was different, I would be
 4quite happy to have started with my closing speech today,
 5but the order of events is that the Defendant has the
 6word, the penultimate word, and I do not think probably we
 7should disturb that.
 8MR RAMPTON:    The only other thing which I can add, which might
 9be helpful, is that Miss Rogers says, and she must be
10believed, that, if your Lordship has any difficulty
11finding any of the references, ours is, I think, now fully
12referenced and should not a problem, but one knows how it
13is. Documents do disappear, it is a fact of life. Or,
14more particularly perhaps, if a document is referred to in
15Mr Irving's closing submission, we will give every
16assistance to your Lordship in trying to find them during
17the course of today.
18MR JUSTICE GRAY:    Yes. I do not know what you say in some of
19your sections, but one particular aspect which I think I
20did mention I thought was important and required thought,
21and I certainly had hoped to have some assistance in
22relation to it, was what I think in the end we called
23assessing Mr Irving as an historian. I do not what you
24say in that section, but I think I noticed there is not a
25section at all. You said nothing on that.
26MR RAMPTON:    I cannot remember which section it is. In fact,

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 1section 9 is, I think, about eleven pages long.
 2MR JUSTICE GRAY:    I do not seem to have got it. I may well
 3have put it in the wrong place.
 4MR RAMPTON:    It is eleven pages of single spaced typescript.
 5MR JUSTICE GRAY:    No, I do not have it.
 6MR RAMPTON:    Here is another copy.
 7MR JUSTICE GRAY:    It was not handed in this morning.
 8MR RAMPTON:    Again, it follows the scheme of the relevant
 9paragraph in the written skeleton.
10MR JUSTICE GRAY:    I cannot really claim to make sense of that,
11just seeing it now.
12MR RAMPTON:    No, of course not. It is a late section in the
13submission, and it needs to be read in the light of
14everything that has gone before, particularly section 1 of
15paragraph 5, the historiography section, but also, of
16course, the Auschwitz section.
17MR JUSTICE GRAY:    Yes.
18MR IRVING:    One other point I am unclear about is precisely
19which matters the Defendants are now claiming protection
20of section 5 over.
21MR JUSTICE GRAY:    As to that, again, if we are not having oral
22argument, it is only right that you should know how I was
23intending to approach it. This would normally be
24ventilated in the course of submissions. Effectively, it
25is really for me to decide and evaluate the seriousness of
26the various imputations against you.

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 1MR IRVING:    Whether section 5 applies?
 2MR JUSTICE GRAY:    Yes. I think you understand the way section
 35 works, and to the extent that there may be unproven some
 4relatively minor imputation against you, then it may be
 5that I would invoke section 5 and say, the fact that that
 6particular imputation has not been proved by the
 7Defendants is not going to mean that their defence of
 8justification as a whole fails.
 9MR IRVING:    But some matters appear to have been left in limbo
10like, for example, the question of whether there was a
11breach of agreement over the Goebbels diaries in Moscow.
12MR RAMPTON:    No, it is not in limbo at all. It is treated
13fully in the Moscow section. Our conclusion about section
145 is that it is no application in this case because
15everything that Professor Lipstadt wrote is true in
16substance.
17MR JUSTICE GRAY:    Quite, but one has to cater for the
18possibility. I think we either do have closing submissions
19or we do not. I think just having odd thoughts being
20canvassed is just not the way to go about it. I am making
21every allowance, Mr Irving, for the fact that you are a
22litigant in person.
23MR IRVING:    Totally ignorant of the law, yes.
24MR JUSTICE GRAY:    You have the opportunity to address me on
25whatever you wish to address me on. I do not know whether
26you have had the chance to absorb what the Defendants have

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