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Posted Wednesday, February 4, 2004

The Thieves Fall Out:   DLA, solicitors for Louise Brittain of Baker Tilly, official Trustee appointed to seize Mr Irving's estate, write to Lipstadt's solicitors, February 13, 2004

[To:] Mishcon de Reya


DX 37954 Kingsway


By DX and fax 020 7404 5982

13 February 2004  

Dear Sirs

We refer to your letter of 12 February 2004. [not posted]

We are not able to agree paragraph 3 of the order suggested by you.

We reiterate that it is our recollection that the court considered that the Trustees were the appropriate persons to instruct an independent expert in relation to Mr Irving's assets. Quite apart from this being the Court's view, it must be right that the independence of any expert appointed must be beyond question. Otherwise, Mr Irving will inevitably seek to challenge the valuation evidence obtained.

Regretfully, we must put on record that when Mr [Tobias] Jersak [ history "expert" hired by Deborah Lipstadt] carried out inspection of the items removed from 81 Duke Street, on behalf of our client [Louise Brittain, the Trustee] he sought to remove certain documentation held in the Trustees' custody. You have already been made aware of this fact by our client. As a result, our client inevitably has concerns about your client's impartiality in this matter.

In addition you seem to forget that the key here is to ascertain whether the items in question have a realisable value so that they can be realised for the benefit of Mr Irving's creditors. Your correspondence consistently refers to the "historical' value of the items. It is not the task of the bankruptcy courts to consider whether assets have an historical value. We would reiterate at this point that, despite significant efforts, our client has not been able to find any person who is prepared to pay for any items in her possession. Your client has been asked whether or not she is prepared to make an offer for the items held. No offer has been forthcoming.

We note that you intend to ask for this matter to be re-listed. It is our clear recollection that the Registrar informed all parties at the hearing on Monday that if there was a dispute as to the terms of the order he would consider the matter further on paper. We therefore believe it premature to seek further hearing of this matter at this stage. As previously set out, if you do take steps to re-list this matter without referring all relevant correspondence back to The Registrar then we shall seek costs against you.

You state that you may now seek recission of whatever order was made at the hearing on Monday and, effectively start afresh. Given the very limited funds in Mr Irving's estate and the escalating costs being incurred by our client following your client's [i.e. Deborah Lipstadt's] involvement in this matter we feel that we have no alternative but to consider with our client [the Trustee] whether, in fact, they should oppose any new application by your client to be joined as a party and seek a direction that assets are returned to Mr Irving. As you know, our client has at all times been more than mindful of your client's position and, indeed, has taken every step to cooperate with her in terms of allowing her to take part in this matter. However our clients cannot allow the already significant costs incurred to escalate further as the result of protracted litigation.

If the court remains minded to make an Order whereby our clients instruct an independent expert, then we suggest that, in fact, the appropriate wording should permit our clients to do so within a specified timescale provided that they are put in funds by your client [Lipstadt]. That way, if your client does not put our client in funds, then the question of the instruction of an expert falls away, leaving our clients free to make whatever application for directions they consider appropriate. It is our clients' intention, in any event, to discuss the selection of an expert with you.

For the record, and for the avoidance of doubt, we are strongly of the view that if expert evidence is obtained then the appropriate next step is for all parties to attend at court again to seek further directions. We do not think it appropriate to list further detailed directions in relation to the filing of further evidence or, indeed, list the matter for trial until the view of the independent expert is ascertained.

We look forward to receiving your confirmation that you propose to pass all relevant correspondence to Registrar Jacques.

Yours faithfully

[Sally Rich]


Our dossier: The fight over Mr Irving's seized possessions and archives
Dossier on Dr Tobias Jersak 
See Radical's Diary about this letter and further developments, Friday, Feb 13, 2004

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