Non-verbatim notes by Mr Irving on the hearing before Registrar Jaques in the High Court at 12:15 p.m. Monday, February 9, 2004
Those present were Mr. Gledhill (for Lipstadt), Mr. Adrian Davies (for Irving), James Libson and Laura Tyler (for Mishcon), unknown for Baker Tilly the Trustees, and Stewart Perry of DLA. James Libson left toward the end.
Perry: DLA made an application re filing and serving, which was extended, on December 10, by Deputy Registrar Brettl, until January 21. Since then the Lipstadt application arrived, and by agreement between the parties the Irving application is stood over pending resolution of the Lipstadt application.
Gledhill asks for directions in terms set out in the Mishcon de Reya letter to DLA [not posted]. Says Trustee is "not happy" with No. 3, "happy" with Nos. 1, 2, 4, 5.
Perry: Not so much happy as ambivalent about them.
Davies: draws Registrar's attention to Irving's witness statement, which Registrar has not received yet through his system; copy handed to him, he is invited to read paras. 49 onwards, re Lipstadt is not a creditor. What Gray J had to say re Lipstadt's position.
Registrar (reads witness statement paras. 48 on.)
Davies: underlines particularly what Gray J said on May 5, 2000, in para. 52 of the statement. No interim Order had been made or applied for by Lipstadt. Since this is not the Court to find primary fact on principle, Lipstadt should apply either to Gray J or else should prepare a bill and lodge it at Supreme Court costs office. Bankruptcy is not a jurisdiction to find primary facts. Lipstadt has not to our knowledge submitted a proof to the Trustee.
Registrar inquires of DLA: Has Trustee solicited a proof from Lipstadt?
DLA: evidence on this is not at hand, but the Trustee would normally wait until money is at hand before soliciting proofs.
Davies continues: Lipstadt has to establish her locus as a creditor. She should be sent back to the Queen's Bench, or told to submit a bill.
Registrar appears to agree: If there is no Order for costs He refers to paras. 49 and 50, says that if Lipstadt has no Order it is difficult to see that she has any locus standi. Discussion re proof, and section 6.96 of the Act, which says a person must submit a claim in writing.
Davies asks for a direction that there be trial on the preliminary issue, whether Lipstadt is indeed a creditor. Also for a direction that an individual should not intermeddle as a point of law in bankruptcy management of estate. The questions should be adjourned into Court, whether Lipstadt had locus, and a direction that further evidence on this be filed.
Davies further states that Mr. Irving will not consent to the Order letters No. 1. On No. 3 we oppose very strongly. Should wait until the determination of the preliminary issue. On No. 4 Mr. Irving's witness statement of February 2 should stand as his evidence. On No. 5, a time estimate of half to a whole day for the preliminary hearing is agreed.
Registrar: orders that Mishcon de Reya should have carriage of the Lipstadt application. A draft index prepared not less than seven days before the hearing, skeletons filed and served two to three days before hearing.
Gledhill then speaks: had received the Irving witness statement of February 2, but prior to today there had been no suggestion received that an application on Lipstadt's status would be made. We (Mishcon) could have brought evidence, had there been proper application. He shows Registrar Gray J's Order of April 11, 2000, page 2 in particular, for "costs of first and second defendants" to be paid, subject to cost assessment. The application had been sprung onus. The only question is should the issue be determined at preliminary hearing, or rolled up with this new application?
Registrar expresses extreme reluctance to go down the route of a preliminary hearing of the issue. It might not in the end reduce costs, as was always promised. The Vice Chancellor had only recently rapped his knuckles for allowing a preliminary hearing.
Gledhill summarizes: there are three points: (1) Lipstadt's standing; (2) abuse of process is now alleged; (3) he did not state. All these points should be dealt with at the same time. Upon making of Bankruptcy Order. If Trustee .s, we will submit a proof for "a very substantial sum" of costs, not only in the first instance but also on the appeal.
Davies: The May 2000 hearing was on Penguin's application, not ours.
Gledhill repeats: The application for a preliminary hearing on status should have been made on Notice, not sprung on us this morning.
Registrar decides: Both applications going to a Judge, on standing and on abuse of process, and Judge should be a Judge in Chancery, as that is the forum for bankruptcy matters.
Davies: Wrong to state we had made no application. It was clearly foreshadowed in Mr. Irving's witness statement. Court should remember Mr. Irving was acting until a few days ago on his own behalf, and is not to be blamed for not making the application. The point at issue is more one of substance. If it goes on to be tried as a whole, it will certainly require more than one day. Factual evidence, is Lipstadt motivated by some other consideration that the desire for a dividend. The propriety of Lipstadt's position, who had for example posted Mr. Irving's Disclosure "all over her website ": she was a contemnor. The issue of whether or not she was in contempt must also come before the Court.
The whole matter would involve a hearing of more than one day. On the other hand the question of her locus standi is a dry one, much more factual. The costs of preparing the full hearing would be much greater. If so minded and set down, the trial would last at least three days, not one, and he would hope to be able to cross examine Lipstadt this time, "which she has studiously avoided so far." Refers again to her misuse of Mr. Irving's Discovery. They are asking for a dispute on facts; but the preliminary issue would be fought on questions of law alone. A realistic estimate of the full hearing would be at least three days.
Gledhill suggests a preliminary hearing before the Registrar, rather than a Judge in Chancery.
Registrar repeats: He is reluctant to go down the preliminary-issue route. Their supporters would always urge it on the grounds of saving costs. His own bitter experience was that often proves to be a false dawn. He agrees that the applicant has been taken by surprise by Mr. Irving's new application. It behooved us to make an application which made that clear. It will, he agrees, take more than one day to hear the full matter. "Brevity has not been the hallmark of this case." At the end of the day the issues are better sorted out before a Judge in Chancery. They are familiar with the relevant law. Directions on both applications (Irving's of October and Lipstadt's of December), so that all issues are fully fleshed out. The question of experts is raised (i.e. on valuation of documents etc.).
Perry: The Trustee asks that the experts be selected and controlled by the Trustee.
Registrar: That is right.
Gledhill: respectfully doubts that the Registrar has the jurisdiction to make an Order that Mishcon de Reya should pay the costs of an expert selected by the Trustee.
Counsel to agree on drafting Directions.