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] DLA | 
write to David Irving