I David John Cawdell Irving of 81 Duke Street, Grosvenor Square, London W1M 5DJ MAKE OATH and say as follows:
1. I swear this affidavit in support of an application for an Order in the terms set out in my summons issued and served on the Second Defendant on Friday, April 16, 1999. The contents of this affidavit are within my own knowledge save as where appears otherwise from the context. Its purport is that the Second Defendant made a selective discovery, to wit wilfully concealing her possession of three newsreel videocassettes containing materials portraying me and also otherwise highly relevant to the issues in this action; and that she recklessly and fraudulently, and with the intent of denying a fair trial of this action, swore an affidavit verifying her lists.
2. There is now produced and shown to me marked "DJCI.6" a paginated bundle ("the bundle"). I rely also on my affidavits herein dated September 4 and November 21, 1998 and January 26, 1999, and on the lists served by the Second Defendant on February 17, 1998 and September 9, 1998.
3. The Second Defendant is represented in this action by Mishcon de Reya ("Mishcon"), to which firm of solicitors Mr Anthony Robert Julius is the consultant who has the conduct of this matter on her behalf (see his affidavit of November 20, 1998, at page 1 of the bundle, in which he also applies for an "unless" Order that my claim be struck out because of alleged non-compliance with an Order for discovery).
DIFFICULTIES IN OBTAINING PROPER DISCOVERY
4. On November 24, 1998 I filed an affidavit setting out a history of difficulties in obtaining proper discovery from the Second Defendant out (see para. 6 at pages 12-15 of the bundle).
5. These difficulties are to be summarised as
(i) difficulties experienced in obtaining proper discovery of documents and categories of documents for which I had applied in writing repeatedly between March and September 1998; and
6. The above difficulties were rehearsed in detail both in my affidavit of November 21, 1998 and its exhibits, to which I respectfully draw attention, and at the hearing before this Honourable Court on December 15, 1998 on my application for an order that the Second Defendant now verify her lists by affidavit.
7. Resisting the application at its hearing on December 15, 1998, Mishcon ventured to exonerate their client by arguing that they accepted responsibility for the above deficiencies. This Honourable Court declined to accept that argument.
8. After hearing myself and solicitors for the Second Defendant this Honourable Court duly made the Order sought, namely that the Second Defendant make file and serve an affidavit verifying the truth of the statements in all her lists of documents by January 12, 1999.
MY FOUR WARNINGS TO THE SECOND DEFENDANT TO CONSIDER CAREFULLY BEFORE SWEARING THE AFFIDAVIT
9. On December 30, 1998 I had reason to write to Mishcon that that I felt that they should advise the Second Defendant of her O.24 obligations, and in particular that they should advise her not to swear the affidavit prematurely if she now realised that there were further items which might be subject to discovery (page 18 of the bundle).
10. On January 7, 1999 I repeated this statement in terms, and for a second time offered a voluntary extension on the date stipulated under the Order (page 19 of the bundle).
11. During the intervening period, I had received information from a paid legal assistant in America who claimed to have ascertained that the Second Defendant had concealed material documents in the case. I emphasise that I do not wish here to uphold this statement beyond the relevant fact that upon meeting Mr James Lewis Libson of Mishcon in another matter on the forenoon of January 12, 1999, I for a third time verbally offered to extend the above mentioned Order by seven days to enable them to advise their client seriously of her discovery obligations. (Extract from my diary at page 20 of the bundle).
12. Mr Libson replied that:
(i) if I had received the said information (which I did not describe), I ought to disclose it to the Second Defendant;
That being so, I said, her affidavit was conclusive and I was debarred from pursuing the matter as against the Second Defendant before trial (per Dillon LJ in Lonrho plc v. Fayed [No. 3]  The Times, 24th June).
12. Mr Libson confirmed the above verbal exchange in a letter faxed to me at 1:08 p.m. on the same day (page 21 of the bundle). I reiterated my position and repeated for a fourth time to Mishcon, by fax an hour later, my offer to extend the period for service of the affidavit (page 22).
13. Since this offer was not taken up, at five p.m. on January 12, 1999 the Second Defendant was in breach of the order. Just before 7 p.m. Mishcon served on me by fax the Second Defendant's affidavit verifying her lists (page 23 of the bundle), but it was unsworn.
14. That being so, I issued and served on January 14, 1999 a summons for an "unless" order returnable on January 21, 1999 (page 28 of the bundle).The jurat to her affidavit, sworn by the Second Defendant at the consular section of the British Embassy in Washington DC on January 20, 1999, was faxed to me that evening (January 21, page 30 of the bundle), and posted to me on the same date.
COMPARISON WITH MY OWN DISCOVERY
15. As this Honourable Court is aware, I have made full and proper discovery; over and above which I have complied with every request by the Defendants. I also voluntarily allowed the inspection of my entire private diaries. Paras. 4 (iv) to (xii) of my affidavit of November 21, 1998 set out the manpower effort put into my discovery.
16. On several occasions I volunteered without prompting fresh items which I had come across, e.g. during refiling operations; see for example my letter of January 31, 1999 to Mishcon (page 33 of the bundle).
PROOF THAT THE "ROGUE" VIDEOTAPES WERE IN THE SECOND DEFENDANT'S CUSTODY
17. In the course of this discovery, I voluntarily listed a total of 236 personal and commercial videocassettes and audiotapes in my custody. As the Second Defendant declined to consider the whole list, a schedule of those selected by me as being of relevance to the issues pleaded was provided as Item 2025 in my third supplemental list.
18. Mishcon's staff duly collected selected items from this list for inspection and copying and returned them to this address in two consecutive deliveries on different dates, namely April 8 and 14, 1999.
19. The first carton of tape cassettes was received and checked by my staff on April 8, 1999 (see affidavit of April 20, 1999 exhibited at page 90 of the bundle); Mishcon's covering letter (page 91 of the bundle) listed the carton's contents as "Numbers 172, 175, 176, 177, 178, 179, 183, 184, 186, 189, 191, 194, 198, 199, 200, 201, 202, 204, 206, 207, 208, 212, 213, 214, 221, 223 (x2), 225, 226, 227, 231, 232, 233, 234, 236." In fact there was no item No. 221 included in this carton.
20. However I observed two days later, April 10, on myself inspecting the carton, that the videocassettes Nos. 223, 226, 227 (the "rogue" cassettes) which it contained were not my property and never had been, as inter alia the handwriting and non-standard number-labels also indicated.
THE "ROGUE" CASSETTES
21. VHS Videocassette No. 223 bore the following labels: (i) spine: "223" "'Dispatches,' 27/11/91 - on German Nazis. 'This Week,' 28/11/91 - on German/UK Nazis." (ii) side: no labels (iii) box: "2 Yes Minister's Jews & Moslems".
22. Super-VHS Videocassette No. 226 bore the following labels: (i) spine: "226" "'This Week', 28/11/91 - Unedited Material, re David Irving / German Nazis. Not for Public Use. Tape 1" (ii) side: "Tape 1. This Week, Thames TV, Original Film material obtained by TV crew, unedited, not for public use. Programme shown 28/11/91. About David Irving/German Nazis." (iii) box: no labels.
23. Super-VHS Videocassette No. 227 bore the following labels: (i) spine: "227" "'This Week', 28/11/91 - Unedited Material, re David Irving / German Nazis. Not for Public Use. Tape 2" (ii) side: "Tape 2. This week, Thames TV, original film material, obtained by TV crew, unedited, programme shown on 28/11/91, not for public use. About David Irving/Nazis in Germany." (iii) box: no labels.
24. I am informed by the expert whom I employ for videotape manufacture, Mr S K, who is fully proficient in these matters, and verily believe that Super-VHS videocassettes (i.e. videocassettes Nos. 226 and 227) are used for television newsreel cameras and have to be specially converted for domestic viewing.
25. It was or in the alternative it should have been evident to the Second Defendant that the unedited content of these videotapes, showing me addressing a crowd of foreign newspaper and television journalists and youngsters in Halle on November 9, 1991, were or might have been significant both for my claim and for the destruction of an essential part of the defence of justification and any subsequent argument on mitigation of damages.
(i) the Second Defendant claims in her Defence that I associate with ultra-right wingers, neo-Nazis, anti-semites, and racists;
26. Mishcon had in their custody but concealed from me
(i) two original videocassettes of the raw television newsreel-camera footage
27. They gave discovery of none of these despite the obligations which O.24 imposes on all parties to discover voluntarily and immediately to the other parties all such documents. Documents includes videocassettes.
28. I respectfully submit that in the premises this conduct represents on the part of Mishcon a wilful disobedience to the directions of this Honourable Court; and on the part of the Second Defendant this conduct represents a reckless act of perjury in having deposed on oath to the completeness of her discovery despite having been alerted by me to suspicions that it was deficient, and despite having four times been offered by me extra time to think it over.
29. The fact that
30. Furthermore, after I served an unsealed copy of the Summons on Mishcon on April 16, 1999 and a member of my staff served the duly sealed Summons on Mishcon at 3 p.m. on April 19, 1999 on that same date namely April 19, 1999 Mishcon faxed to me two letters (pages 95 and 97 of the bundle) claiming privilege in the "rogue" videocassettes.
31. It becomes perfectly apparent from these letters therefore that this is not a case of a negligent mistake by the Second Defendant, which would be reprehensible given that she had sworn an affidavit but perhaps understandable given the scope of discovery; on the contrary, the letters make it plain Mishcon took a deliberate decision to withhold these documents on the basis of a claim of privilege which cannot be sustained as a matter of law, and I respectfully submit that that is as clear an instance of elective discovery as can be imagined.
FAIR TRIAL NO LONGER POSSIBLE
32. As an impoverished litigant in person, I am subject to formidable obstacles in preparing and bringing this action against a well organised, highly professional and tactically versed firm of solicitors.
33. The history of discovery in this action as set out above shows in my submission that the Second Defendant intends to use these advantages against me quite ruthlessly. That being so, I respectfuly submit that there is little prospect that the Second Defendant intends to assist in a fair trial of this action.
34. In the premises I ask that this Honourable Court make an order granting the relief sought namely that
(1) the Second Defendant's defence be struck out with costs, including the costs of this application, the Plaintiff to be at liberty to set the action down for trial on the evidence of the Plaintiff and the First Defendant alone, and the Second Defendant to be debarred from giving evidence without the leave of the Trial Judge; alternatively
[sworn etc by David Irving, London, April 20, 1999]