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Richard Hughey says, Tuesday, May 18, 2004, that Mr Irving "took the Fifth" in the PQ.17 libel trial in 1970


Taking the "Fifth"

YOUR complaints about Professor Lipstadt's decision not to testify at her trial in 2000 confuse me.

Did you not do the same thing at the trial of Capt. Broome against you for libel in 1970?

Richard Hughey



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David Irving

David Irving comments

GOOD point, and you are well informed indeed, but there is a difference in law. I don't know what advice Lipstadt received. I do know what advice I received, and as I told my Counsel after the PQ17 trial was over, in February 1970, "you don't hire the very finest professionals and then ignore their advice."

I made plain before that trial began that I was willing to testify in open court, but my eminent counsel, Colin Duncan, QC, ruled that we would call no evidence, since there was no need -- the statements in my book were supported 100 percent by the Admiralty's documents which were before the Court. Cassell's insurers had reached the same conclusion on the documents, otherwise they would not have allowed the case to go to trial.

At the forefront of Mr Duncan's mind no doubt was also the fact that I was at that time just 32, while Capt Jack Broome had the DSO, and was a retired pensioner in his seventies: a point of which the judge made rather much in his summing up.

Calling no evidence, while risky, has the strategic benefit of reversing the order of final statements to the jury, leaving us the right to the last word.

If you read the transcript of the final day's hearing in the Lipstadt case in March 2000 you will see that although Richard Rampton, QC had lost that right by calling a succession of highly-paid and well-remunerated witnesses -- other than Lipstadt herself -- he still managed, with the connivance of Mr Justice Gray, to interrupt my closing statement on several occasions and thus in effect secured the last word for himself. But that is another matter. Gentlemen play the game by the rules, and Rampton chose not to.

There was an important legal reason for Colin Duncan not to call me. Put quite simply, there was nothing that I could have told the jury. I was not in the convoy operation -- being four years old in 1942. I was not at the Admiralty. The judge, Mr Justice Lawton, would not have allowed me to testify on anything other than what is known in law as "the state of my mind" when writing the book, which was not at issue in the original claim.

Unfortunately at a very late stage in the proceedings -- after we had made our election to call no evidence -- the plaintiff Captain Broome amended his claim to include a claim for punitive damages, at which point the state of my mind did become of material interest to the court.

Having made our election, we could not change it, such were the rules; and I had to sit in the front row of the courtroom for nineteen days listening to the plaintiff's counsel, the extremely capable Mr David Hirst QC, pour slime over me, setting out the spurious case that I had deliberately set out to libel Capt Broome, having made the "cynical calculation" that the damages and costs I might have to pay would be far less than any additional profit that would accrue from inserting the libels in the book. That is the essential element of a claim for punitive damages in libel.

A ridiculous hypothesis, as we could have shown that the advance paid by Messrs Cassell & Co for the book in 1967 was just £1,000, while the damages were likely to be far in excess of that; the damages actually awarded were £48,000 -- the second largest in history at that time -- plus legal costs of around a quarter of a million.


© Focal Point 2004 David Irving