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.


Professor Deborah Lipstadt asks the High Court to Forbid this Website to publish her legal documents
Mr Irving responds to her lawyers, January 20, 1999, 2:37 p.m.:

To: Mr James Libson, Mishcon de Reya

Dear Mr Libson

thank you for your letter about the Website, and I note your intention of applying to the Court for relief. I have reviewed the legal position.

We live in a free countiy, and if clients behave in as reprehensible a manner as yours, they must take the consequences of the subsequent exposure of those actions, within the law, to the baleful glare of public scrutiny. When this case comes to trial I shall ensure that all relevant documents, as and when they come within the public domain, are released to the media and to the readers of my own report with the speed of electronic light to assist them in their understanding of the action and the issues involved. You may not appreciate that an "off-line website" is constructed purely within the computer box, within these premises.

You state your intention of making an application. We have an appointment on my Summons before Master Trench at 10:30 A.M. tomorrow. I shall thereafter be out of this country in the USA for a month, and I shall ask for the costs of any return journey if your application is made inter partes.

I am well aware of the scope of the implied undertaking, by which I shall continue to abide. I have no intention of releasing into the public domain or of making any collateral use of any documents disclosed by your client on Discovery until such time as they are read in open court or referred to at the trial of this action. If you make an ex parte application to the Court I trust that you will bring the contents of this letter and in particular of this paragraph to the attention of the Queen's Bench Judge in Chambers.

Yours sincerely,

Later that evening Mr Irving wrote again:

Dear Mr Libson:

Professor Lipstadt

Re: Your letter of this evening's date informing me that you intend applying for an ex parte injunction. I draw your attention to O.22, r 8, on the implied undertaking. This ceases to apply once the document has been read to or by the Court, or referred to in open Court. I do not believe that the Court will accept that the special reasons then referred to in the Rule can be construed as including your clients' embarrassment at having their machinations revealed to the public at large.

This new Rule was the outcome of the settlement that followed Home Office v Harman [1983] 1 A.C. 280. Brown-Wilkinson VC also held that once a document has been used and referred to in open court it is a public document: Mahon & Kent v Rahn [1997] All E.R. 687, C.A. These are the authorities I rely on in stating that "The document will be uploaded to this website [covering the court action] as soon as it enters the public domain during the proceedings," i.e. when is is legal to do so.

Yours sincerely,

David Irving

(Please also draw the above arguments to the Court's attention)

Affidavit by [solicitor] James Libson, for Professor Deborah Lipstadt, January 21, 1999
[reproduced here without the exhibits]

I, JAMES LEWIS LIBSON of 21 Southampton Row, London WC1B 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 own knowledge save where appears otherwise from the context.

2. I swear this affidavit in order to bring to the Court's attention the Plaintiffs ("Mr Irving") breach of his implied undertaking in relation to discovery given by Professor Lipstadt.

First Breach

3. Mr Irving's first breach took place on 19th March 1998. This was drawn to the Court's attention in Anthony Julius' First Affidavit of 13th May 1998. To summarise, Mr Irving attended my firm's office on 18th March 1998 to inspect Professor Lipstadt's documents. He posted two of the documents on his website the same day. There is now produced and shown to me in an exhibit marked "JLL 1". Pages 1 and 2 are copies of Mr Irving's website pages showing the two documents [not currently posted]. On 19th March 1998 my firm wrote to him asking him to remove the offending items (page 2 of exhibit JLL 1) and to give an undertaking that he would not post any of the documents obtained on discovery to his website or to any other website under his control or use the documents in any way for any purpose other than the litigation. Whilst he took the document off the website, he refused to give the undertaking sought (page 4 of JLL 1).

Second Breach

4. My firm had cause to write to Mr Irving again on 27th March 1998 regarding a further breach of his implied undertaking (page 5 of JLL 1). Mr Irving had used another document obtained on discovery to make a threat of libel proceedings against the Board of Deputies. He had deliberately backdated his letter[1] to 18th March 1998 (page 6 of JLL 1) to give the appearance of it being sent before he had been warned for the first time of his contempt. Page 7 of "JLL 1" is a copy of the envelope in which the letter was sent showing it was posted on 24th March 1998. Further correspondence ensued regarding this matter, in particular Mr Irving's failure to give the undertaking sought in our letter of 27th March 1998 (pages 7-10 of JLL1). In our letter to Mr Irving on 22nd April 1998 (page 11 of JLL 1) we advised Mr Irving that we would raise his breach of his implied undertaking with the Court at the appropriate time.

5. On 20th January 1999, I discovered, on reading Mr Irving's website, a new addition headed "The Legal Battle". The pages I downloaded are at pages 12-18 of JLL1. I was very concerned for the following reasons:

(1) On page 13 of JLL1, Mr Irving refers to document 500 in Professor Lipstadt's List of Documents and confirms it will be uploaded to the website as soon as it enters the public domain. However, it also states that a fully hyperlinked version of the document is currently accessible through the Index, only to those equipped with the password(s) for "privileged consultation" purposes. My concern is that all those with passwords are not people whose advice is being sought by Mr Irving for any purpose reasonably necessary for the proper conduct of his action.

(2) I refer to page 17 of JLL1 where Mr Irving states he is taking on extra staff to build a secret (i.e. offline) website on which all the documents for both sides will be posted and hyperlinked in advance and each uploaded for public viewing online as soon as it becomes legally possible. These staff would have access to Professor Lipstadt's discovery in order to prepare the web site for the sole purpose of, as Mr Irving himself says, to show that Professor Lipstadt has acted in a reprehensible manner as the "gold-tipped spearhead of the enemies of the truth" (page 16 JLL1).

(3) On pages 16-17 of JLL1, Mr Irving refers to documents in Professor Lipstadt's discovery and identified by whom they were prepared and what sort of documents they are. By doing this, he is using information derived from Professor Lipstadt's discovery to encourage people to support him against Professor Lipstadt.

6. My firm immediately wrote to Mr Irving on 20th January 1999 (page 19 of JLL1). We advised him of his implied undertaking and explained that he may only use documents for the purposes of conducting his own case and not for any collateral or ulterior purpose. We highlighted his reference to taking on extra staff to build his secret offline website which, I submit demonstrates a clear intention to break his undertaking.

7. Mr Irving responded to my firm's letter (page 20 of JLL1). He confirmed he has reviewed the legal position and is aware of the scope of the implied undertaking. He also confirmed that he does not intend to release any of Professor Lipstadt's documents into the public domain or use them for any collateral purpose until they are read in open Court or referred to at the trial of this action.

8. My firm immediately replied to address the points raised in his letter (page 21 of JLL1). We advised Mr Irving that in his own words, he was disclosing Professor Lipstadt's documents on his website because she had behaved in a reprehensible manner. Notwithstanding that documents are on an offsite website at his premises, they are clearly accessible to a number of individuals with a password. Mr Irving responded to our letter the same day (page 22 of JLL1). He advised us again of the case law in respect of documents which are read out in open Court or referred to at trial. However, this is not the point we are making. On the basis of the information on Mr Irving's website (pages 12-18 of JLL 1), I have strong grounds to believe that Mr Irving is allowing various people access to Professor Lipstadt's discovery for ulterior purposes not reasonably necessary for the proper conduct of his action. As can be seen from the tone of his website, Mr Irving is conducting an aggressive campaign against Professor Lipstadt by referring to her discovery. I am informed and believe that many of the people who read Mr Irving's website are violent rightwing extremists[2] and by misusing documents in this way, Mr Irving is putting Professor Lipstadt in danger.

9. Accordingly, I wish to draw the latest of Mr Irving's breaches to the Court's attention and respectfully ask the Court to advise Mr Irving, as a litigant in person, in clear terms on his obligations in respect of discovery.

Sworn this [21st] day of January 1999

Before me,


  1. continue...All dates and times on Mr Irving's correspondence are computer-generated and thus not susceptible to faking. [Return]
  2. Tendentious nonsense.[Return]
At 5 p.m. on January 22, 1999 all parties in this action exchanged statements of Witnesses of Fact