International Campaign for Real History

In the High Court of Justice

DJC Irving

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Penguin Books Ltd and Deborah Lipstadt

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In 1993 American scholar Deborah Lipstadt published Denying the Holocaust, product of a research contract funded by an Israeli agency.

British writer David Irving claims that it libels him.


Affidavit served by Mishcon de Reya in response, April 21, 1999, 7:50 p.m.


I, JAMES LEWIS LIBSON of 21 Southampton Row, London WC I B 5HS MAKE OATH AND SAY as follows:

1. I am a solicitor in the firm of Mishcon de Reya and have the conduct of this matter on behalf of the Second Defendant ("Professor Lipstadt"). The contents of this affidavit are within my knowledge and are true save where appears otherwise from the context.

2. I swear this affidavit in response to the Plaintiff's application for an Order that Professor Lipstadt's Defence be struck out or, alternatively, she serves a Further and Better List of documents together with an Affidavit sworn by Anthony Julius of this firm. who has overall conduct of this matter.

Professor Lipstadt's discovery

3. On 20 January 1999, in compliance with the Order of Master Trench dated 15 December 1998. Professor Lipstadt swore an Affidavit verifying the first List of Documents she served on 17 February 1998 and the Supplemental List of Documents she served on 9 September 1998 (together "the Lists"). The unsworn Affidavit was served on the Plaintiff on 12 January 1999 and the jurat followed on 21 January 1999. In her Affidavit, Professor Lipstadt confirms that she has given full discovery of all the documents relating to the matters in question in this action, which are in her possession, custody or power. There is now produced and shown to me an Exhibit marked "JLL 3" containing various documents and correspondence. At pages 1-2 is a copy of Professor Lipstadt's Affidavit. At pages 3-48 and 49-60 are Professor Lipstadt's First and Supplemental Lists of Documents respectively.

4. At Schedule 1 Part 2 of the Lists, Professor Lipstadt claims privilege over documents prepared by or for the use of my firm for the purposes of this action. This includes documents prepared by third parties and sent to my firm for the purposes of advising Professor Lipstadt on and preparing her defence. Naturally, Professor Lipstadt (an American citizen and resident there) has taken advice from this firm as to what privilege can be claimed and in respect of which documents.

The privileged videos

5. In the course of my investigations into the Plaintiff's political links with the far right (which is an issue in question in the action on which Master Trench has directed in his Order of 24 November 1998 that expert evidence may be adduced), I was given the following videos by a third party:

(i) a video numbered 23 which is a copy video of two programmes, Dispatches and This Week broadcast on 27 and 28 November 1991 respectively -- the programmes are documents about right wing political groups in Germany and show scenes of right wing and neo-Nazi rallies. There are clips of the Plaintiff's attendance and speeches at a number of these rallies. Dispatches is the English version of a documentary by Michael Schmidt shown in Sweden in 1991;

(ii) a video numbered 226 which is a copy of the "rushes" of the programme This Week -- rushes are the unedited recordings of film footage taken during the making of the programme but which are not used in the final version of the programme which is broadcast; and

(iii) a video numbered 227 which is a copy of further "rushes" of the programme This Week.

6. I do not exactly recall the date on which I was given the videos. However, it was some time early in 1998. I was not given any other videos from the third party.

7. In the course of assisting the experts, my firm has conducted extensive investigations. This has resulted in the receipt of documents covered by litigation privilege. Given the nature of these documents, some of them will have been created before the litigation began and others will have come into existence for the purposes of the litigation. Insofar as these are referred to and appended to the expert reports, currently due to be exchanged on 31 May 1999, privilege will be waived in relation to them. As far as the privileged videos are concerned, it is likely that the expert on political extremism in Germany, having reviewed them, will include some of the material from the privileged videos in his report.

8. I understood when I was given the privileged videos that they were copies of the third party's own "original" copies. However, on receipt of the Plaintiff's Summons, when I made further enquiries of the third party. I was informed and believe that it is likely I was given their "original" copies.

The Plaintiff's videos

9. The Plaintiff served a Third Supplemental List on 24 November 1998 ("the Third List"). At pages 61 -- 75 of exhibit JLL 3 is a copy of the Third List. Document 2025 discloses a select inventory of video and audio recordings. On visiting the Plaintiff's house to inspect the documents in his Third List, the Plaintiff handed me a list of the videos arid audio cassettes in his possession. custody and control which are relevant to the action and to which document 2025 refers. A copy of the Plaintiff's list of videos is at pages 76-80 of exhibit JLL3. In or around December 1998 the Plaintiff sent my firm all the videos he had produced at inspection for copying. Video number 213 in the Plaintiff's list of videos contains a recording of the same Dispatches and This Week programmes that are on the privileged video 223 referred to at paragraph 5(i) above.

10. After copying the Plaintiff's videos, my firm returned some of the original videos to him under cover of a letter dated 8 April 1999, as specified in paragraph 1 of the letter. At paragraph 2 of the letter, my firm promised to return the remaining videos within the week. A copy of the letter is at page 81 of exhibit JLL3. Under cover of a letter dated 14 April 1999 (at page 82 of exhibit JLL3) my firm duly returned the remaining videos belonging to the Plaintiff to him. In his letter of 15 April 1999 (at page 83 of exhibit JLL3) the Plaintiff confirms all his videos have now been returned to him.

Inadvertent disclosure of the privileged videos

11. The labels on the privileged videos are the same as those on the Plaintiff's videos. I am informed and believe that the paralegal who was responsible for returning the Plaintiff's videos, believed that the privileged videos therefore belonged to the Plaintiff and accordingly, sent them to him under cover of the letter of 8 April 1999. This was merely an error on her part and does not constitute a waiver of Professor Lipstadt's privilege.

12. Given that the privileged videos had not been disclosed in either of the Lists (other than within Schedule I part 2). and that Professor Lipstadt has verified her Lists on Affidavit. it should have been clear to the Plaintiff that they had been disclosed in error. Accordingly, the Plaintiff should have telephoned my firm immediately on discovering the privileged videos to inform us he had received them, whereupon we would have advised the Plaintiff that privilege had not been waived and that he should return the videos and any copies or notes thereof to us immediately.

13. On receiving the Plaintiff's Summons and discovering what in fact had taken place, my firm immediately faxed a letter to the Plaintiff on 19 April 1999 (page 85 of exhibit JLL3) stating that privilege in the videos had not been waived and asking him to return them immediately. The Plaintiff replied by return (page 86 of exhibit JLL3) asking if he could return what he called the "rogue" videos at the hearing of his Summons. My firm immediately responded to ask the Plaintiff again to return the privileged videos Immediately. A copy of this letter dated 19 April 1999 is at page 87 of exhibit JLL3. At the time of swearing this Affidavit, the privileged videos have not been returned.

14. My firm sent a further letter on 19 April 1999 (page 89 of exhibit JLL3) clearly setting out the grounds for claiming privilege in the third party's videos, as requested by the Plaintiff in his fax of 19 April 1999 (at page 88 of exhibit JLL3). We proposed that, as it was likely we would be waiving privilege in any event in due course in the third party's videos on exchange of expert reports. the Plaintiff should return them to us whereupon we would supply him with a copy set. At the time of swearing this Affidavit, the Plaintiff has not responded to this letter,

The Plaintiff's Summons

15. In his Summons, the Plaintiff claims that Professor Lipstadt has either fraudulently and with intent to deceive or recklessly or negligently sworn a false affidavit. namely her Affidavit of 20 January 1999, and accordingly her Defence should be struck out. This is clearly not the case. I am informed and believe that Professor Lipstadt has complied fully with her discovery obligations. The privileged videos have never been in Professor Lipstadt's personal possession, nor as far as I am aware, has she ever seen them.

16. The Plaintiff also seeks an order that Professor Lipstadt serve a Further & Better List of Documents and that Mr Julius file an affidavit verifying such a List. As far as I am aware, no further documents have come into Professor Lipstadt's possession, custody or power which do not attract privilege. Accordingly, there are no further documents for Professor Lipstadt to include in a Further & Better List.

17. The Plaintiff also asks the Court to order that in his verifying affidavit Mr Julius confirms when and from whom the privileged videos were obtained. The Plaintiff is not entitled to this information. The documents are privileged and the particulars he seeks are irrelevant.

18. The Plaintiff further asked that Mr Julius explain what has become of item 221 referred to in the first paragraph of the letter of 8 April 1999. I can confirm that there is only one item 221. It is a video belonging to the Plaintiff which he has disclosed in his list of videos. As promised in the second paragraph of the letter, item 221 was returned to the Plaintiff under cover of my firm's letter of 14 April 1999. The reference to item 221 in the first paragraph of the letter of 8 April 1999 is merely a typographical error, It should not have been mentioned there.

19. In paragraph 2(iv) of his Summons, the Plaintiff implies that there is a second item 221 which forms part of a series of videos which include the privileged videos that Professor Lipstadt has not disclosed. This is incorrect. As I have said at paragraph 19 above. there is only one item 221 which is the video belonging to the Plaintiff, This has been returned to him,

20. The Plaintiff further asks Mr Julius to state in his affidavit whether items 224 and 225 which he implies form part of an alleged series of videos, are indeed videos and to confirm what has become of them. I can confirm that neither I. nor Mr Julius, nor Professor Lipstadt know whether any videos numbered 224 and 225 exist and whether they form part of the so-called series the Plaintiff is alleging exists.

The Plaintiff's Affidavit

21. The Plaintiff claims that he has had difficulties in obtaining proper discovery from Professor Lipstadt. This is not correct. Professor Lipstadt has complied with her discovery obligations. As regards document 500 which the Plaintiff refers to at paragraph 5 (ii) of his Affidavit, I refer to paragraphs 5-7 of Mr Julius' Affidavit sworn on 14 December 1998. A copy of the Affidavit is at pages 90-92 of exhibit JLL3. This Affidavit was sworn in response to the Plaintiff's application for further discovery, supported by his Affidavit of 24 November 1998. (a copy of the Plaintiff's Affidavit is at pages 93-104 of exhibit JLL3). Mr Julius was responding particularly to paragraphs 5(v)-(vi) of the Plaintiff's Affidavit.

22. The Plaintiff seeks to compare Professor Lipstadt's discovery with that of his own. However, he has not presented the full position as regards his discovery. On 11 September 1998, Master Trench ordered the Plaintiff to serve a supplemental list and a verifying Affidavit within 28 days. By 20 November 1998, the Plaintiff had not complied with Master Trench's Order. Accordingly, Professor Lipstadt made an application supported by an Affidavit sworn by Mr Julius on 20 November 1998 (at pages 105-7 of exhibit JLL3) for an Order than unless the Plaintiff comply with Master Trench's Order of 11 September 1998, his claim be struck out. The Plaintiff finally served his Third List and verifying Affidavit on 24 November 1998.

23, The Plaintiff alleges at paragraph 25 of his Affidavit in support of his Summons that the reason my firm has not disclosed the privileged videos to him, was because my firm believed it would harm Professor Lipstadt's case, This is not true, on the contrary, the rushes are extremely helpful to Professor Lipstadt's case as they clearly demonstrate the Plaintiff's links and political activities with the far right, as shall be demonstrated in the expert's report on this issue.

24. There is no justification in the Plaintiff's statement at paragraph 33 of his Affidavit that because Professor Lipstadt has instructed a firm of lawyers, there is little prospect that she intends to assist in a fair trial of this action.

Order sought

25. Accordingly, the Plaintiff has no grounds for striking out Professor Lipstadt's defence or for going behind her Affidavit of 20 January 1999, which is conclusive in the absence of any evidence of deliberately suppressed documents. There is no real or substantial risk that the Plaintiff will not receive a fair trial and that justice will not be done. I therefore ask that the Honourable Court to deny the Plaintiff the relief he is seeking in his Summons and instead to order that he return the privileged videos to my firm's custody immediately on my firm's undertaking to provide him with copies of the same. I also intend to copy a set of the privileged videos and return the "original" videos to the custody of the third party.

Sworn this 21st day of April 1999

[signed] James Libson

Before me,

0171-242 5905

Website comment: the Michael Schmidt referred to in paragraph 5(i) is a German police informer, who also worked for Spiegel TV and volunteered to the Munich police authorities video footage of the Löwenbräu hall speech addressed by Mr Irving on April 21, 1990, for which the writer was fined DM30,000 (around $22,000). Schmidt is author of The New Reich, Penetrating the Secrets of Today's neo-Nazi Networks, published by Hutchinson.
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