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.


Skeleton Legal Argument for David Irving (Plaintiff) in Support of his Application to be heard on Friday April 23, 1999


THE PLAINTIFF (1) The Plaintiff seeks by way of primary relief an Order striking out the Second Defendant's Defence, and debarring her from giving evidence without the leave of the Trial Judge, with liberty to the Plaintiff to set the action down for trial on the evidence of the Plaintiff and the First Defendant alone.

(2) The ground for the Plaintiff's application is that the Second Defendant has suppressed highly material discovery for over a year, and sworn a false affidavit purporting to verify a seriously defective list.

(3) The Court has power to grant the relief sought under RSC Order 24, rule 16. While generally an affidavit purporting to verify a list of documents is conclusive at an interlocutory stage Stuart-Smith LJ found that there is an exception to that rule if a "...breach could be ascertained from the party's own documents, affidavits or pleadings" (in Lonrho plc v. Fayed (No. 3) (1993) The Times, 24th June at page 349).

(4) Mance J reviewed the authorities on Order 24, rule 16 in Cepheus Shipping Corporation v. GRE Assurance PLC; The Capricorn [1995] 1 Lloyd's Reports 622 at 642 et seq. The Plaintiff submits that the following propositions emerge from Mance J's review of the authorities. The general rule, laid down by Millett J (as he then was) in Logicrose Ltd v. Southend United Football Club Ltd (1988) The Times, 5th March is that "Once a missing document had been produced, an action ought to be dismissed only if, despite its production, there remains a real risk that justice cannot be done" (per Mance J in Cepheus Shipping Corporation v. GRE Assurance PLC; The Capricorn [1995] 1 Lloyd's Reports 622 at 645).

(5) There is an important exception to that rule, to be found in a dictum of Lloyd LJ (as he then was), delivering the judgment of the Court of Appeal in Landauer Limited v. Comins & Co (1991) The Times Law Reports, 7th August at page 382: "His Lordship could imagine cases of contumacious conduct, such as the deliberate suppression of a document, which might justify the striking out, on the analogy of striking out for want of prosecution, even if a fair trial were still possible."

(6) The Plaintiff concedes that those remarks by Lloyd LJ are strictly obiter, but submits that they should carry great weight with the Court, as the considered view of a distinguished judge, since raised to the House of Lords. Moreover, Mance J accepted them as correctly stating the law when reviewing Landauer Limited v. Comins & Co (1991) The Times Law Reports, 7th August in Cepheus Shipping Corporation v. GRE Assurance PLC; The Capricorn [1995] 1 Lloyd's Reports.

(7) It is submitted that the Second Defendant's conduct in this matter is plainly contumacious, and that there can be no excuse for swearing an Affidavit purportedly verifying a list of documents (especially after the Plaintiff had repeatedly urged reflection upon the Second Defendant's solicitors) from which documents so material to the issues in the action had been omitted.

(8) It is further submitted that in such circumstances the Court should not readily be convinced that a fair trial is still possible, at any rate between the Plaintiff and the Second Defendant. The failure to disclose material evidence should arouse the vigilance and suspicion of the Court as to the Second Defendant's approach to discovery generally.

(9) If the Court is minded (contrary to the Plaintiff's primary case for which he will contend in the strongest terms) to afford the Second Defendant an opportunity to remedy her default, then RSC Order 24, rule 7 (2) is in point.

(10) Were the Court to refuse the Plaintiff the primary relief which he seeks, it is submitted that not only should the Second Defendant be ordered to make and serve a Further & Better List, but also that her solicitor, Anthony Julius, as the partner in the firm of Mishcon de Reya, should file an Affidavit verifying such list.

(11) The responsibility on a solicitor to ensure that his client properly understands and discharges her discovery obligation is heavy. The swearing of so seriously defective an affidavit is prima facie evidence of a culpable dereliction of such duty. The Second Defendant's oath has been devalued by the defaults which have come to light. In the circumstances it is submitted that, if not minded to make an order striking out the Second Defendant's defence forthwith, the Court should at least make an order requiring Mr Julius, as the partner with the conduct of the matter on the Second Defendant's behalf, to verify her list on his affidavit.

(12) This is a discrete application rendered necessary by the Second Defendant's serious default. It is accordingly submitted that the appropriate costs order would be Plaintiff's costs in any event, to be taxed forthwith on an indemnity basis.

David Irving

Friday, April 23, 1999


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