Claimant's Reply
to the Defendants'
Submissions
of 3rd October 2000 1. For the Court's ease of reference, the
Claimant will adopt the Defendants' scheme of
numbering, so that references to the numbered
paragraphs in Gray J's judgment of 11th April 2000
are prefixed with the letter "J", and references to
the numbered paragraphs in the Claimant's skeleton
argument in support of his application for
permission to appeal are prefixed with the letter
"G". References to the numbered paragraphs in the
Defendants' Submissions in Answer of 3rd October
2000 will be prefixed with the letter "A", and
references to the numbered paragraphs in these
Submissions in Reply by the letter "R". 2. The Claimant entirely agrees with A2 and A4.
The Claimant also agrees with A7, subject to the
proviso that Irving does not accept that (contrary
to what is suggested in the first sentence of A7)
Gray J always followed his own (admittedly and
averedly correct) direction at J1.3 (" . . . it is
not for me to form, still less to express, a
judgment about what happened . . ."). 3. The Defendants lightly dismiss G5 at A9. They
are wrong to do so. While in an ordinary case it is
less difficult for a judge sitting alone than for
twelve jurors to put out of mind press reports to
the great prejudice of one of the parties, still "
. . . when a judge assumes the ermine he does not
divest himself of humanity . . ." (per Lord
Macmillan in Law and Other Things, CUP,
1937). Given the scope and extent of the hysterical
media campaign against Irving, which continued
unabated throughout the trial of this quite
extraordinary case, Gray J (only recently appointed
to the bench) must have been all too acutely aware
what journalistic vilification awaited him, were he
to find in Irving's favour. That consideration
cannot but have preyed upon his subconscious if not
his conscious mind. Irving is therefore fairly
entitled to make the point that he does at G5. 4. Contrary to what is suggested at A5, G7
cannot sensibly be categorized as "minor." As to
the Defendants' alleged success in justifying J2.15
(1) (e) (described at A5 as J2.15 (vi)), see
J13.7. 5. While the Defendants claim (A17) to have
proved " . . . that Irving was a 'Holocaust denier'
in whatever sense that term might reasonably be
understood," J13.93 to 13.98 and J13.161 do not
support this contention, nor do the Defendants at
A17 answer the question posed at G23, G24 and G47,
any more than Evans did at trial. 6. Turning to what is said at A19, there is no
meaningful distinction between an allegation that
Irving associates with violent extremists and the
admitted libel "which the Defendants did not
attempt to justify" (A19) that Irving "agreed to
participate in a conference at which
representatives of terrorist organisations were due
to speak . . ." (J2.15 (1) (c)). The first is a
conclusion which follows inevitably from the
second. 7. Continuing with this theme, A 74 is wrong and
G36 to G40 are right. Cp. an allegation that (1) 'X
is an extremist. He believes in an united, Gaelic
speaking, Catholic Ireland, rid of British
influence' and (2) 'X agreed to share a platform
with spokesmen for the Provisional IRA'. It is
submitted that even if X is a Protestant and an
Unionist to whom the imputed views are anathema,
(1) however false would not on that account be
defamatory for the reasons given by Street J. in
Slatyer v. Daily Telegraph [1907] 7
NSWSR 488 at 498 and cited at G37, whereas (2)
plainly would be, because of the implied
condonation of terrorism. To prove only that a man
holds unpopular views is no justification of an
allegation that he is willing to associate with
those prepared to use violence in the furtherance
of such views. 8. A15 disregards not only the obvious point
that, human nature being what it is, a witness such
as Van Pelt who is paid
£109,244.24 to give evidence is unlikely
to remain uninfluenced by the payment, but also
passes quickly over Gray J's own expression of
surprise on 5th May 2000 at learning of the sum
(£92,557.94) paid to Funke, who had given
evidence for only half a day or thereabouts. On
15th April 2000 Funke gave an interview to
Neues
Deutschland,the newspaper of the former
East German ruling party, from which his bias is
apparent. 9. The Claimant gratefully accepts and adopts
the view expressed at A15 that the work of the
Defendants' experts " . . . was the principal
foundation of the Defendants' case . . . and turned
out to be the principal foundation of the judge's
findings," and relies strongly upon it in support
of the argument put at G13 to G16, which is at the
heart of the Claimant's case on the proposed
appeal. 10. The suggestions at A6 (2), A11 and A12 are
in large measure inconsistent with and refuted by
A15 itself, alternatively they are, even on the
Defendants' own case, of much slighter importance
than the validity or otherwise of the Defendants'
expert evidence, which is manifestly open to
challenge on appeal for the reasons stated at G13
to G16. 11. The second sentence of A7 is indisputably
correct (see R2 above), and is also strongly
adopted by the Claimant in support of G13 to
G16. 12. Contrary to what is said at e.g. A11, A41
(2), A42 and A58, slight weight should be attached
to limited concessions wrung from but quickly
retracted by a litigant in person in the course of
sustained and ferocious cross-examination, while
the witness (aged 62) was suffering from the
fatigue and stress of a thirty-two day trial,
during which he was subjected to daily media
vilification, and in which the opposing parties
were represented by leading and junior counsel, two
well-known firms of solicitors, and four highly
paid experts. 13. Without wishing to labour a point already
made at length at G13 to G16, it follows from R9
that whether Gray J was right to find for the
Defendants depends principally on an assessment of
the documentary and scientific evidence taken as a
whole, not on his view of Irving as a witness,
still less on any lay evidence led by the
Defendants, since by the Defendants' deliberate
choice there was none. As the Second Defendant
(Lipstadt) herself wrote in the Jerusalem
Post of 29th May 2000
[in fact June 5,
2000]: "We didn't call survivors,
because first of all we didn't want to subject them
to cross-examination by this guy. He would have
destroyed them." All the "eye-witnesses" to whose
testimony Gray J frequently refers in his judgment
are persons long since dead, who gave evidence of
debatable quality before war crimes tribunals of
varying objectivity in the first half of the last
century, not before Gray J at the trial of this
action. 14. The suggestion at A15 that the expert
evidence was of high quality merely begs the main
question on the proposed appeal, which cannot
properly be answered by outline submissions at the
application for permission stage. A18 (to take but
one example) strikingly fails to give any
satisfactory reason why the evidence of a professor
of cultural history is of the least value in
determining questions which obviously require a
very high degree of expertise in the exact science
of chemistry, which Van Pelt neither has, nor
claimed to possess, just as he has no special skill
as an interpreter of photographs, or of the
physical testimony of chemically contaminated
ruins, let alone as a gas chamber or crematorium
engineer. 15. As to the alleged "absurdity" of Irving's
criticisms of Evans, see for example Evans's
intemperate comments reported in The
Times Diary of 16th May 2000, despite Gray
J's generally favourable assessment of Irving as an
historian at J13.7:-- "Cambridge University is bracing itself
for an almighty thunderclap. David Irving, the
anti-Semite historian, has been invited -
against the wishes of almost every Fenland
dweller - to take part in a Union Society debate
next term. The chorus of disapproval, which is
gaining steam daily, is being led by Richard
Evans, the don who testified against the
historian at his recent trial. 'The Union is
inviting him to speak in the knowledge he is a
neo-Fascist politician,' he tells me. 'I would
not be willing to debate with him since I am not
a politician and he is not a historian.'" 16. A20 overlooks the logical point that, while
Evans was being
paid £70,181 to find "converging" mistakes
in Irving's works, which tended to understate
Hitler's direct personal responsibility for the
mass murder of Jews, no-one was being paid to look
for "diverging" mistakes in Irving's work which
overstated Hitler's as opposed to Himmler's or
Heydrich's or Goebbels's responsibility. 17. The Claimant cannot possibly reply in detail
to A20 to A73 within the constraints imposed by
Sedley LJ's order of 6th September 2000, but
ventures the following brief observations. 18. The Defendants' case is succinctly and
accurately summarized at A7, viz. "that Irving was
neither objective nor fair-minded, but had
deliberately falsified the evidence available to
him," and (to the like effect) in the first
sentence of A20, with which the Claimant wholly
agrees as a statement of the issues. 19. In order to succeed, Irving did not have to
refute the orthodox historical consensus. Rather
the Defendants (the burden on a plea of
justification being squarely upon them) had to
prove that Irving did not reach his alternative
"revisionist" position after an objective and
fair-minded analysis of the data available to him
at the time. As Gray J accepted (J4.10), since the
Defendants' pleas of justification is tantamount to
a charge of fraud against Irving, an enhanced
burden of proof lay upon them. 20. If rigorous and dispassionate examination
of, for example, the alleged "'convergence' of
evidence . . . that hundreds of thousands of Jews
were systematically gassed to death at Auschwitz"
(A53) casts any reasonable doubt on the orthodox
historical consensus, then the Defendants have
wholly failed to make out their case. So, by way of
example, the long dead "eyewitnesses" did show
impressive unanimity in describing the manholes in
the roof through which the Zyklon-B crystals were
poured into the gas chamber at Crematorium II. The
roof slab survives. The physical evidence of the
roof slab (photographs
of which were shown to the Court) suggests that
the holes do not exist. It is submitted that the
orthodox historical consensus on this issue is at
the least open to serious doubt. 21. Likewise if a proper analysis of the Bartz
telex and the Schlegelberger
Memorandum casts serious doubts on the orthodox
consensus regarding Hitler's as opposed to
Goebbels's responsibility for Kristallnacht, and
Hitler's as opposed to Himmler's responsibility for
the planning
of the Final Solution, then no defamatory
meaning of the words complained of is justified by
proof that Irving has questioned matters which
remain in reasonable contention between fair-minded
historians. 22. Analysis of the questions raised by R20 and
R21 must of necessity raise "issues . . . of the
greatest importance for the interpretation of the
political and military history of the twentieth
century" as is (it is submitted, very fairly)
stated at G10, to which the second sentence of A10
gives a transparently disingenuous "answer " so far
as questions of historical interest are concerned.
The Claimant has never contended that the proposed
appeal raises novel points of law, so it is no
refutation of his case to say (as the Defendants do
at A10) that it does not. 23. As to A77, Irving told those who chanted
neo-Nazi slogans that they were bringing shame
upon Germany. The Defendants' summary of the video
evidence is partial and prejudicial. It needs
(quite literally) to be seen as a whole if its
weight is to be assessed properly. - ADRIAN DAVIES
- 10th October 2000
- IN THE COURT OF APPEAL
2000/2095
- Nigel Adams & Co.
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