Irving v. Lipstadt

 1IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN'S BENCH DIVISION
 2Royal Courts of Justice
 3Strand, London
 4Wednesday, 15th March 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 THIRTY-TWO
26

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 1<(Day 32)
 2(10.30 a.m.)
 4MR JUSTICE GRAY:    Mr Irving, before you say what you want to
 5say and before Mr Rampton starts, can I just say this.
 6I certainly do not intend to have a sort of inquest about
 7why yesterday was abortive. I was a bit surprised, as you
 8may have gathered. I have looked at the transcript of day
 930 and I can see how the misunderstanding arose. I think
10it was then contemplated we would have two days of closing
11submissions and it has not worked out like that. The
12reason I mention it is simply this. Having looked again
13at both sets of written closing submissions -- for which
14I am very grateful, a lot of work has gone into them
15obviously -- there are one or two points that I think
16I ought to put really to both sides. I will do that
17whenever it is convenient to you both. I will either do
18it before or during or after, whichever you find
19convenient -- probably after, I suspect.
20MR RAMPTON:    After, I would suggest.
21MR JUSTICE GRAY:    After your public statement, but I do not
22want to do it. That is what I am really telling you.
23MR RAMPTON:    I would also suggest, perhaps, because they are
24not things in which the majority of people in this room
25are going to be closely interested, we could also deal
26with these five points after.

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 1MR JUSTICE GRAY:    Which five?
 2MR RAMPTON:    Mr Irving's five points.
 3MR JUSTICE GRAY:    The Muller document standard of proof,
 4section 5 etc.
 5MR RAMPTON:    They are partly matters of law and partly matters
 6of detail.
 7MR JUSTICE GRAY:    Subject to Mr Irving, I entirely agree about
 8that. Mr Irving, these are the nitty-gritty, are they
 9not?
10MR IRVING:    I did not want to be wrong-footed by leaving them
11out. I want to draw your Lordship's attention to the fact
12that there are these final loose ends that need to be tied
13up.
14MR JUSTICE GRAY:    I certainly agree. We ought to spend a few
15minutes on the Muller document.
16MR IRVING:    Except for the one point, my Lord, point 4 on that
17list. Having reconsidered the matter, I do consider I am
18entitled to make slightly broader use of the material
19which was in the bundle E matters on the basis that I have
20set out there, that they might go to aggravated damages
21and they certainly go to explaining my state of mind when
22I am alleged to have made certain remarks about the bodies
23or persons concerned.
24MR JUSTICE GRAY:    What I will do -- I know the Defendants are
25not very happy about this but I think I am going to do it
26anyway unless Mr Rampton wants to try and dissuade me --

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 1is to let you make your closing submissions along the
 2lines of the written document. I am bound to say that
 3I think a lot of it goes beyond what the evidence
 4establishes, and also goes beyond what you are really
 5entitled in any event to rely on by way of aggravated
 6damages against the Defendants because, of course, you
 7have to prove the Defendants' involvement in the
 8conspiracy. But I am going to let you do it, unless
 9Mr Rampton continue tries to dissuade me.
10MR RAMPTON:    No, I have no objection.
11MR JUSTICE GRAY:    I think it is the right thing to do in this
12particular case.
13MR RAMPTON:    I agree. Miss Rogers has dealt with it very
14succinctly and, in my submission, very effectively on
15paper. It is in your Lordship's hands at the end of all
16this. If this were a Jury case, it would be entirely
17different, but it is not. We are confident that we can
18leave it happily to your Lordship. I would also add
19this. It does seem to me, and I will say this, that the
20more of that kind of speculative fantasy Mr Irving spins
21in a public court in this country, the more harm he does
22his own cause. I only say that at this stage.
23MR JUSTICE GRAY:    That is as may be.
24MR IRVING:    Be that as may be, my Lord, of course, I would be
25perfectly entitled in my closing speech to put to the
26court the matters that I would have put to the Defendants

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 1had they had the courage to go into the witness box. That
 2is the kind of material that I would have put to them.
 3MR JUSTICE GRAY:    Well, I am not sure that is actually right,
 4as a matter of law, but I am taking a liberal approach.
 5Say what you have indicated you intend to say in due
 6course.
 7MR IRVING:    I will certainly tighten it up. I shall not go to
 8such lengths.
 9MR RAMPTON:    My Lord, I will then read, if I may, what your
10Lordship has in writing. I start by observing that your
11Lordship will notice, as I read it, that there are one or
12two stylistic changes that I have made overnight. They
13are merely stylistic. They do not touch the substance of
14what I have to say.
15MR JUSTICE GRAY:    I will keep my mouth shut and I will not
16interrupt you, but there are the points that I want to
17raise with you at the end of your statement.
18MR RAMPTON:    If your Lordship would rather do it now?
19MR JUSTICE GRAY:    No, it is better at the end.
20MR RAMPTON:    My Lord, I start with this, that if one had read
21some of the media reports of this trial, which I realize
22that your Lordship probably has not, one might have
23supposed that Mr Irving had been dragged into this court
24to defend his freedom of expression as an historian.
25    In fact, of course, that is not so. The history
26of the matter is quite the reverse. Professor Deborah

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