Further to our recent correspondence regarding the breaches of your implied undertaking in respect of our client's discovery, we have now seen on your website accessed at http./www.fpp.co.uk. Legal/Penquin/witness that you have published the majority of our client's witness statements served on you on 22 January 1999.
You are clearly in breach of RSC Order 32 rule 2A. In light of your experience in previous actions and your letter of 20 January 1999, you will no doubt be aware that like the documents obtained on discovery, witness statements are confidential and priviledged until they have been read in open court.
We have given you ample warning regarding your conduct in this regard. Accordingly, we put you on notice that we are making an ex parte application for an Order to restrain you from further breaching your obligations to the Court and to ensure you remove all offending items on your website and access to them.
Please confirm by return that you have removed all the witness statements served on behalf of our client from your website.
MISCHON DE REYA
Monday, January 25, 1999
Dear Mr Libson
Thank you for your fax, and I trust that you will give me proper notice of your ex parte application, as I shall serve an affidavit in response.
You rely on rule O.32, r 2 A; I take it you mean O.38, r 2A, and that you are relying primarily on sub-paragraph 11. It is clear, and I shall so argue, that I am using the statements for the purposes of these proceedings, appealing for information about your witnesses, just as in the case of Jonathan Mozzochi who turned out to have a police record as a skinhead gang-leader; I note that you are no longer seeking to introduce evidence from him. For instance, I am asking people to provide information about the university attended by one of your witnesses, as a known source of KGB and Stasi agents.
(Please also draw the above arguments to the Court's attention)
Further to our letter of yesterday evening and our telephone conversation today, we confirm that we will be moving the Court for an injunction at 2 pm this afternoon. The application will be made before Mr Justice Moses in Room E101. We enclose for your information a copy of the index of the bundle we have sent to the Judge and a copy of James Libson's Second Affidavit. There is a 70 page exhibit marked "JLL2" which contains documents downloaded from your website and recent correspondence passing between us in this matter. You have confirmed that you do not need us to send you a copy of the exhibit.
Kindly acknowledge receipt and let us have a copy of your affidavit evidence in reply as indicated in your last fax of yesterday.
MISHCON DE REYA
Deponent: James Lewis
SECOND AFFIDAVIT OF JAMES LEWIS LIBSON
I, JAMES LEWIS LIBSON of 21 Southampton Row. London WCIB 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 support of an application on behalf of Professor Lipstadt for an injunction restraining Mr. Irving from:
(i) further breaching his implied undertaking to the Court in respect of documents disclosed by Professor Lipstadt on discovery of this action in her List of Documents served on 17 February 1998 and her Supplemental List served on 9 September 1998;
ordering Mr Irving to:
(iii) remove password access to the offsite website containing some or all of' the documents disclosed by Professor Lipstadt's to Mr Irving on discovery;
(iv) disclose to Professor Lipstadt the identity of all those people with offsite website passwords to ensure that Mr Irving is only disclosing the documents to specific third parties for the purposes of the proper conduct of these legal proceedings; and
(v) disclose to Professor Lipstadt the identity of all those people who have been given any of the documents for the purposes of posting them on the website.
First and Second Breaches
3. Paragraphs 3 and 4 of my First Affidavit sworn on 21 January 1999 are a summary of Mr Irving's first and second breaches of his implied undertaking to the Court in respect of Professor Lipstadt's discovery. These took place in March and April 1998. The relevant documents and correspondence are at pages 1-11 of exhibit JLL1. They were dealt with by Anthony Julius (a consultant to my firm who also has conduct of this matter) in his First and Second Affidavits sworn on 13 May and 28 August 1998. Mr Julius swore these Affidavits in support of Professor Lipstadt's application for specific discovery against Mr Irving. At page 14 of JLL1. under the heading "Index" (which appears to be open only to those with passwords) Mr Irving apologises for having to remove a document which he had posted until 19 March 1998 when he had to remove it at our request.
4. I refer to paragraphs 28 - 32 of Anthony Julius' First Affidavit sworn in support of an application for specific discovery against Mr Irving. Mr Julius demonstrates that Mr Irving is an experienced litigant, that he has repeatedly been advised of his obligations. Mr Irving responds to these submissions in his Affidavit in reply sworn on 24 August 1998 [not posted]. I refer to paragraphs (c) - (e) on page 5 where Mr Irving attempts to deal with these issues. At paragraph (e) he agrees to give a partial undertaking in respect of Professor Lipstadt's discovery but refuses to undertake not to give the widest possible publicly to them once they are in the public domain. I also refer to paragraphs 20. 1 - 20.2 of Mr Julius Second Affidavit sworn on 28 August 1998 which explains why Mr Irving has not properly addressed the points.
5. At paragraphs 5-8 of my First Affidavit I describe Mr Irving's third breach of his implied undertaking. Mr Irving was put on notice that we would be making an application to the Court to guard against further abuses and he was given the opportunity to explain himself. His explanation was, however, inadequate. I refer to pages 19 - 22 of JLL1 from my First Affidavit and to paragraph 7 of my First Affidavit. This deals with Mr Irving's letter of 20 January 1999 in which he confirms he has reviewed his legal position as regards his implied undertaking. However, my concern is not about Mr Irving publishing documents prior to them coming into the public domain. My concern is about Mr Irving's persistent breaches of his implied undertaking to the Court by disclosing confidential documents to third parties for ulterior or collateral purposes other than the proper conduct of this action.
6. Although he is a litigant in person, Mr Irving is clearly aware of his obligations as regards confidential and privileged documents from previous litigation experience, from legal advice he has sought, from our correspondence and from the Affidavits referred to at paragraph 3 above. However, be has deliberately ignored them.
My conversation with Mr Irving and our hearing before Master Trench
7. Mr Irving had a Summons fixed for 10.30 am on Friday 22 January 1999 before Master Trench in respect of his application for Professor Lipstadt to serve a copy of her sworn Affidavit verifying her discovery. Given that Mr Irving is a litigant in person, before taking the step of applying to Court for an injunction against him, I decided to bring his breaches to the Court's attention. Master Trench has had conduct of this matter for some time now and is very familiar with the issues. He had also read the earlier Affidavits of Mr Julius' and Mr Irving as referred to at paragraph 4 above. I considered our hearing before Master Trench as an opportunity (i) to draw Mr Irving's breaches to the Court out of courtesy and (ii) to resolve the matter by asking Master Trench to explain to Mr Irving's his obligations in respect of Professor Lipstadt's discovery.
8. Prior to the hearing. I gave Mr. Irving a copy of my First Affidavit and exhibit JLL1. I explained to Master Trench that one of my main concerns was that Mr Irving had set up an offsite website of documents Professor Lipstadt had disclosed to him on discovery. The hyper-linked version of these documents is accessible through Mr Irving's website for those people who have passwords. (See page 13 of exhibit JLL1). Mr Irving replied that he had put in place a highly sophisticated password system. Anyone who tried to break the password would only find yet another password to get through and then another and another and in the end, they would only find a boring document. However, these so called "boring" documents are part of Professor Lipstadt's discovery.
9. Master Trench's response to my Affidavit was that it is not a matter for him but for the Judge. Accordingly, I advised Mr Irving to prepare for our application for an injunction against him.
10. On arriving at my office yesterday, a colleague informed me that she had logged on to Mr Irving's website http://www.fpp.co.uk/Legal/Penguin. She had wanted to check whether Mr Irving had removed the offending items he had posted to his website last week and whether he had removed the password access to Professor Lipstadt's discovery. She informed me that he had not. There is now produced and shown to me a paginated bundle of documents marked "Exhibit JLL2". Pages 1-7 of JLL2 are the pages (slightly amended) found on Mr Irving's website on 25 January 1999 which he had posted last week, as exhibited at pages 12-18 of JLL1.
11. In addition, on 24 January 1999, Mr. Irving had posted in full, the contents of eight of the twelve witness statements together with a selection of documents appended to them which were served by Professor Lipstadt on 22 January 1999. Page 10 of JLL2 is my covering letter enclosing the witness statements. Pages 11-65 are the pages I printed from Mr Irving's website which contain the statements verbatim. Mr. Irving had not posted the remaining four statements, although he had by late last night (see paragraph 16 below).
12. My immediately faxed Mr Irving (page 66 of JLL2) to advise him that we had seen Professor Lipstadt's witness statements on his website which are privileged and confidential. We asked him to remove the statements and documents. We also put him on notice that we would be making an ex-parte application to Court for an order restraining him from breaching his obligations further and to ensure he removed all offending items from his website and access to them. He responded (page 67 of JLL2) explaining that he was using the statements for the purpose of these proceedings. However, he did not properly explain how. He did not confirm that he would remove the statements and documents.
13. Publication of the statements verbatim in this way is a clear breach of RSC Order 38 rule 2A paragraph 11 and the confidentiality and privilege in these statements. There is no attempt at all to limit circulation. At pages 16, 21, 22. 33 and 39 of JLL2, Mr Irving seeks opinions from his "world-wide circle of friends" on Professor Lipstadt's statement. Furthermore. Mr. Irving's website can be read by anyone in the world with access to the internet.
14. Mr Irving has not only disclosed the statements on his website but the appendices of documents referred to therein and the personal addresses of some of the witnesses too (see pages 46-7, 50-1. 52, 55, 56, 60, 61 and 64 of JLL2). This information is confidential. Mr Irving also asks for opinions about other witnesses and their statements from his website readers (see pages 46, 50, 54, 56. 60 and 63 of JLL2).
15. I refer to page 68 of JLL2 which is my firm's letter of yesterday in reply to Irving's letter at page 67. We repeated that we would be making an application on the afternoon of 26 January 1999. This is now a matter of urgency. Having learned of Mr Irving's third breach of his implied undertaking on Thursday 21 January 1999 we wrote to him immediately to ask him to remove the offending items and put him on notice of our intention to seek an order from the Court to restrain him. The following day I raised the issue with Master Trench and gave Mr Irving the opportunity to explain his actions. By Sunday 24 January 1999 Mr Irving had posted to his website eight of the witness statements served on him on Friday 22 January 1999. Having discovered these on Monday 25 January 1999, we immediately sent him another warning and put him on notice of our application today.
16. Having exchanged correspondence with Mr Irving throughout the day yesterday including the letters at pages 69 and 70 of JLL2D, I checked his website last night, to see whether he had complied with our demands to remove all the documents, password access and the witness statements. I found that he had not. He had also posted the remaining four witness statements that we had served on him on 22 January 1999. This morning, when I checked his website again. I discovered that Mr Irving had removed all the witness statements pending the outcome of this afternoon's hearing. This demonstrates that Mr Irving will only comply with his obligations if ordered to do so by the Court.
17. No privilege or confidentiality has been waived in respect of the witness statements. Mr Irving has not sought leave either from the Court or from Professor Lipstadt to use her statements for any other purpose other than the proper prosecution of this action. Mr Irving is well aware of his obligations and yet has repeatedly breached his implied undertaking and confidentiality. There is no reason to believe that he will desist.
18. In the premises, I submit that Mr. Irving's breaches of his obligations are of such a serious nature as to justify urgent action by the Court in granting an injunction in the terms set out in the draft Order now presented to the Court. If so directed by the Court, Professor Lipstadt is prepared to abide by any order which the Court may make as to damages (if any) in case the Court may be at of the opinion that Mr Irving shall have suffered any by reason of the order she is now seeking which she ought to pay.
Sworn this day 26 of January 1999
[SIGNED JAMES LIBSON]
January 26, 1999
Dear Mr Libson
I enclose by way of service my affidavit and exhibits on your firm's application ex parte for an injunction.
For Mr Irving's diary note on the resulting hearing before Mr Justice Moses at 3:30 p.m. on January 26, 1999, see A Radical's Diary.
An Application was made ex parte on notice on the 26th day of January 1999 by Counsel for the Second Defendant and Solicitor for the First Defendant to the Judge. The Judge heard the Application and read the Affidavits listed in Schedule 1 and accepted the undertakings in Schedule 2 at the end of this Order.