Mr Irving to his counsel: Draft responses to the Witness Statement filed on April 1, 2004 by the official Trustee in re Mr Irving's claim for the return of his possessions, and Deborah Lipstadt's counter-claim for all his possessions to be turned over to her.
Key West, Thursday, April 8, 2004 [4:42 PM]
Dear Paul (and Adrian)
I gave you my initial response to the Trustee's witness statement in an email today. The following is a point-by-point response. More points will occur to you.
Para. 2: Until reading this witness statement's Para. 2 I did not know -- I was not informed -- that Haig was one of the Trustees. I was told only of [Louise] Brittain. I have never seen page 2 of the exhibits before. Colin Haig should now therefore be joined to my application. Given the importance of Haig vs. Aitken, this seems important; they cannot therefore plead ignorance of the law on "books and papers."
Para. 9: if they are holding little funds, they have themselves to blame. Bradford & Bingley (B&B) sold the property for £200,000 less than the offer than was made to me during the previous twelve months. The Trustee also allowed B&B to hold it empty for six months, running up further interest charges, before selling it.
Para. 13: the various people attending the meeting were not identified to me at the time, which accounts for the confusion in identities. They were strangers who marched into my home and claimed to have various functions to perform. I knew only that some were the Trustee and some the Trustee's solicitors. There was also a "Daryl", as I recall.
Para. 14: I agree it may therefore not have been DLA who made the statement referred to in this Paragraph, but the Trustees (who clearly did act in the Aitken case).
Para. 16: Unlike the Trustee, I abided by my undertaking not to dispose of the items. For her undertaking, which has clearly been broken (see exhibits, page 23) not to sell any items removed from the property without giving us fourteen days' notice, see Paras. 20, and 35.3.
Para. 18: I did not "unsuccessfully attempt to obtain a stay of the eviction." I instructed [London solicitors:] Amhurst, Brown, Colombotti, and put them in funds, and they negligently omitted to make the application. When I learned of this omission, it was too late to avert the disaster.
Para. 19: they list Benté Hogh as a "partner": but overlook whether she had any inherent rights to the equity in the property or its contents. . . The final sentence of this Paragraph is not admitted.
Para. 20: the Trustee or DLA repeated on several occasions the undertaking not to dispose of items seized without notifying us. This was important to us, as friends had indicated they would enable us to buy back such items at reasonable market valuations, and Bente was keen to recover her own chattels. Contrary to the final sentence of this Para. 20, I was never notified of the location of the items taken -- I now suspect, deliberately -- until after the recent Order was made, when I had to be told the location to enable my agent to attend to invigilate the inspection and valuation by Jersak et al.
Para. 23-24: the Trustee asserted wholly wrongly by letter to DLA and B&B a claim to all the possessions in the premises, and consequently forbade my re-entry as agreed by B&B to retrieve the remaining possessions, which Benté had not been able to remove before the locks were changed, including most of her personal possessions. As for "no evidence being provided" by me: as the Trustee knew, I was eight time zones away in Seattle.
Para. 25: the only item of "Nazi memorabilia" was a replica bust in bronze of Dr Joseph Goebbels, whose biography I had just published. There was nothing else of this nature. The reference to Nazi memorabilia is an attempt to prejudice.
Para. 26 is not admitted in this form.
Para. 28: Kevin H was at the property on behalf of Bente Hogh, who was (and is) very sick. I admit that I sent to Mr Hall an email list of essential items which Bente had to rescue if she could from the disaster, like personal diaries, personal photo negatives, etc. It never occurred to me that my entire historical archive and book-library, or other tools of my trade as historian, were at risk.
Para. 29: notwithstanding what the Trustee says, the Trustee removed our only table, our only chairs, and asserted via DLA in writing a spurious claim to the entire remaining contents of the flat (which included all white goods, linen, beds, sofas, kitchen equipment, pots, pans, glasses, crockery, tableware etc), all of which were subsequently lost, looted, or disposed of by B&B.
Para. 30: This Paragraph is denied. The Trustee in writing asserted a claim to the entire contents of the property, and refused permission to B&B to allow us to return to retrieve them.
Para. 31: the email of May 31, 2002 referred specifically to tools of the trade, so they were not "unspecified." I have always continued to write books when travelling overseas, and the continued deprival of the computer discs (referred to by the Trustee) hampered and still hampers me: if a computer crashes, I cannot reload a programme; while other discs seized have the raw materials and data for the books.
Para. 32: It is absurd to suggest that an author should write his books at a law office, during no doubt regular office hours, for a period of no doubt a few days; I have been working on the Churchill biography since 1970 (I will exhibit a copy of volume II so that the Court can see the research involved); the Hitler biography took fifteen years to write, and two more periods of ten years each to revise. As SIA's inventory shows, the Trustee wrongfully seized two hundred archive boxes of my assembled research materials, including photocopies of documents I have consulted in archives around the world, which I constantly need to consult. This also indicates why it is impossible for me to particularise which files I need to see. They should not have seized them. They were wrong.
Para. 33: The Trustee did not respond substantively to Amhurst, Brown, Colombotti's inquiry about what had happened to our residual possessions, to all of which she had wrongly asserted a claim.
Para. 34: On the contrary, we were still under the impression, since DLA themselves had stated this to B&B or Amhurst, Brown, Colombotti, that the Trustee was asserting a claim to all these residual possessions and we were to be prevented from entering the empty property to retrieve them, or in the alternative had taken them into safe storage. I was of course still in the USA.
Para. 36: On July 12, 2002, finally, six or seven weeks after the eviction, the Trustee's solicitors DLA wrote to B&B relinquishing the wrongful claim to all the residual possessions remaining at the Property. They advised B&B to contact me direct. Why on earth did DLA not contact me directly? They and the Trustee had my address, my email address, the address of my solicitors Amhurst, Brown, Colombotti, the phone number of Benté, etc., and other ways of contacting me direct. The Trustee had no obligations towards B&B, but they certainly did have toward me. That is what "Trustee" means. B&B did not contact me.
Para. 37, last two sentences: I had now been informed that the Trustee was no longer asserting a claim to these chattels, and that she had thus lifted the embargo on our entering the property. I thus set about finding out precisely what was happening, as I was about to return to the UK. Alas, they had all been looted, disposed of by B&B, or destroyed by then.
Para. 38: The Trustee's original wording was not clear, and I was not privy to the inner workings of her mind. As for her having sold stuff at public auction, I was relying (sadly, until this very day, today) on her undertaking not to sell anything without giving us two weeks' notice. I have only today, receiving her witness statement and seeing page 23 of her exhibits, learned to my shock and distress that she has broken this undertaking and disposed of items, at ridiculous prices, including some which were of evident sentimental value to my family.
Para. 39: I responded very fully listing the items I believed to be tools of the trade. This was Answer No. 117 of my Answers, and needs little amplification. I had to compile it from memory, since I had even at that time (November 2002) not been supplied with any inventory of items seized, although the Trustee had already had inventories (of both items taken and items left behind) faxed to her by SIA on about May 28, 2002.
Para. 41: The correspondence will show that the Trustee
repeatedly ignored my letters of inquiry and complaint,
until I made plain I would apply to the Court for relief.
[For her] to act like this may have been in a
cost-effective manner, but not in a timely manner. She
herself has squandered the considerable assets of the estate
searching for a non-existent crock of Gold. Both Mishcon de
Reya [Lipstadt's solicitors] and I have expressed
doubts as to the Trustee's competency. I believe she was
simply overwhelmed by the work involved in seizing my
possessions, was horrified to find that over a lifetime of
writing I have never been interested in amassing items of
commercial value, and that there was consequently little
that had been seized that could be auctioned for profit.
There is no excuse for the petty and malicious manner in
which she has, to use her own words, "resisted" my requests
that she immediately return the tools of my trade and papers
which were wrongfully seized, despite receiving legal
advice, presumably from DLA, that she was wrong to resist
Para. 44: My list (my Answer No. 117, pages 25--30 of the Exhibits) was not "brief". It set out from memory, but very fully, the categories that had been wrongly seized.
Para. 47: It is pathetic for the Trustee to state she must remain "neutral" because she is without funds. That is no defence to my application, and the Court should resist this specious attempt to throw herself on their mercy. If she had not in her own words "resisted", and had returned my wrongfully seized possessions when I first asked in the spring of 2002, they would not be in this mess now.
Para. 48.3: In Haig vs. Aitken the Court made it clear beyond peradventure that by "books and papers" the insolvency laws referred to financial books and financial papers needed to clarify the Bankrupt's financial affairs -- not the research library of a professional historian, and all his personal correspondence and research papers built up over forty years for literary projects, including a major biography, two volumes of which are complete and the third of which he is currently completing. It is because of the personal involvement in the above case of one of the joint Trustees, Colin Haig, that the Court should slap down any attempt by the Trustee now to plead ignorance, or to ask (Para. 48.3) that I should be made to pay the cost of the storage of my wrongfully seized possessions.
Para. 48.4: To state that I am a writer, writing out of
the country much of the year, is completely irrelevant. To
state that I could have consulted my own files in a lawyer's
office is at worst contemptible, or disingenuous at best.
The offer if seriously made reveals only the ignorance of
the person making it, as to the manner in which books are