Unless correspondents ask us not to, this Website will post selected letters that it receives and invite open debate.
Christopher Price asks, Sunday, January 2, 2005, why Evidence was withdrawn from the Lipstadt Trial appeal
Evidence withdrawn from the Lipstadt Trial appeal
I AM a law student, preparing a paper on civil procedure. The Lipstadt case is one of about a dozen I will be citing at length. The transcripts and commentary by Gray J, Sedley J and Pill J, inter alia, are clear. I am hoping you will be able to explain an element of your strategy which is not clear (to me, at least). Thank you, in advance, for your attention in my query.
Prior to your oral arguments before the three-judge panel, subsequent to your going down before Gray J and Sedley J, you submitted the Polanska-Palmer and [Germar] Rudolf affidavits, arguing that these would demonstrate that Gray J disregarded the weight of the evidence.
In response, Lipstadt filed affidavits by Mazal, Van Pelt and Green, which you received. With no explanation, you then withdrew the Polanska-Palmer and Rudolf affidavits. Pill expressed the panel's "dismay'' at your action. Pill et al approved Gray and declined to grant you relief.
My question is simple: Did you withdraw Polanska-Palmer and Rudolf because the three responding affidavits showed they were bad and would not shift the weigh of the evidence in your favour? Or?
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David Irving responds:
WE did not see the rebuttal affidavits. You are wrong. I would urge that you first read my reply to the letter of a certain Price, which answers your question very fully, posted on my website and also [this letter]
I will be very happy to answer any questions you still have after reading those two items
I am grateful for your response. I have now read the two items. I have one further question about the action. It was your contention that Polanska-Palmer and Rudolf would shift the weight of the evidence in your favour. Why then, as it appears from the papers, did your counsel give Pill LJ etc. no explanation for the withdrawal of your intention to bring the affidavits? Your counsel's silence did not favour you.
Out of curiosity, are you still pursuing Sereny and The Observer?
WE attached far more importance to the evidence that the expert witnesses were not neutral, as is required in law. I eschewed calling [Germar] Rudolf in the first instance [the 2000 Trial] because (a) I had no idea that the case was going to devolve into an examination of whether the Holocaust happened or not, which should have been no concern whatsoever of the court; (b) [. . .] in my judgment he would have cut a poor figure in the High Court witness stand.
In the second Instance (appeal proceedings), Rudolf first supplied at my expense a report which lacked all scientific notes and source references; useless as an expert report. He very grudgingly then filled these in. Scientifically it was a good report, but we could not put it before the Court for the legal reasons stated. [... Further comments about the Germar Rudolf legal situation omitted.]
Counsel (Adrian Davies) had no need to explain to the Court why we could not put in the Rudolf Report. The Court had already refused to let us put in in evidence Prof "Skunky" Evans's post-trial book Lying about Hitler, since our solicitor (by then, discharged) had not given proper notice to the respondents.
If you decide not to call evidence, there is no requirement to inform a Court why. In the first instance, the  libel hearing, Lipstadt's attorneys decided not to call either her or two expert witnesses, and did not explain why. That put me to disadvantage, having had to waste time preparing their cross-examination, and all the Discovery to go with it. These things happen.
As for who won: since Lipstadt's team wasted some 13 million dollars which they could not recover, it must seem a Pyrrhic victory at best. What kind of victory is it that costs so much, and takes a team the size of theirs, with payments the size they are found to have made to their witnesses, to accomplish against a lone and unskilled plaintiff, arguing without legal aid, and unaided in Court?
I wonder if any UK publisher will dare to publish her next book: we are eagerly awaiting her next arrival in the UK. As her lawyers remarked in private correspondence with other lawyers, which I have seen, "David Irving is more active than ever before," writing books, travelling the USA, lecturing, organising lectures and international conferences and the rest.
I certainly do not feel defeated.
As for pursuing Gita Sereny and The Observer: by agreement with them I played that match second; unfortunately however the British Government trustee seized my entire archives including all my legal files, and including the case files for The Observer action, Discovery, etc., etc. This has delayed things beyond the point where it seems to make sense to proceed. The trustee is now negotiating to return my archives, library etc., but we have a new fight with them as I am claiming substantial compensation for wrongful deprivation.
IF Rudolf is a flake, why did you expect him to help shift the balance of evidence in your favor? And what of Polanska-Palmer? I press this point because the balance-of-evidence issue was something upon which you relied going into your appeal process.
The Penguin/Lipstadt expert witnesses' fees, counsels' fees: I don't understand your point. Is it that because the victory cost money, it is, in law, less of a victory than if it cost nothing? Or if it cost less?
The Penguin/Lipstadt fees are in line with counsel and expert witnesses in cases of similar complexity and duration. You can't be suggesting the court was unduly swayed or impressed by the effects of the money spent? Gray J, when a first-rank QC, would have been running up the steepest of fees and calling the most expensive of expert witnesses.
You are beginning to trespass on my patience with your obstinacy, so your capital is beginning to run out!
If Rudolf is a flake, why did you expect him to help shift the balance of evidence in your favor? -- For the same reason that The Leuchter Report was of use: both have solid, objective, scientific points to make, Leuchter with his tables of forensic tests (produced by forensic chemists of unquestioned expertise and qualifications); Rudolf by shooting down the "scientific" arguments of the non-chemists used by the defence. These arguments were not deployed in the first trial; remember, expert reports are exchanged simultaneously.
And what of Polanska-Palmer? I press this point because the balance-of-evidence issue was something upon which you relied going into your appeal process. -- Without wishing to come down too harshly on her, I discovered that she had no tattoo. Maybe she was in Auschwitz, but . . . maybe not. It would have been highly unfortunate if she herself, a defence witness, had turned out to be an ASSHOL -- a member of the Association of Spurious Survivors of the Holocaust and Other Liars. As things turned out however, our solicitor Nigel Adams -- fired on the eve of the Appeal -- had neglected to secure her jurat on the affidavit, so that was that.
The Penguin/Lipstadt expert witnesses' fees, counsels' fees: I don't understand your point. -- Then try. You seem an intelligent human being. Try. (See my opening sentence above).
Is it that because the victory cost money, it is, in law, less of a victory than if it cost nothing? Or if it cost less? -- Wolff LCJ ruled in the first clause of his new Rules of the Supreme Court that justice must be obtained with proportionate costs, or words to that effect. When one side spends $13m, and the other can afford to spend nothing at all... well, again, you seem an intelligent human being. Try. (See my opening sentence above). As I said in my remarks to the press on the Judgment day in April 2002, "Sometimes Goliath wins."
The Penguin/Lipstadt fees are in line with counsel and expert witnesses in cases of similar complexity and duration. You can't be suggesting the court was unduly swayed or impressed by the effects of the money spent? -- The Court did not learn of them. The expert witnesses were invited to express opinions on the basis of their expert knowledge, -- and they were paid upwards of half a million dollars each by only one side. Go figure. When Gray J was told of the actual fees paid to these "neutral" expert witnesses, he said that he was shocked, that the amounts were "obscene" (his word), and that he would not allow them to be charged in their entirety. As it was, the Defence, despite explicit Orders to do so from the Court of Appeal, never had their costs taxed. I do not wonder why.
Gray J, when a first-rank QC, would have been running up the steepest of fees and calling the most expensive of expert witnesses. -- Your point is?
Incidentally, what law school are you attending? I like to keep track of these things.
Thursday, July 28, 2005
I AM sorry you ignored my follow-up questions about Rudolf and Polanska-Palmer. When I told my tutor you were proving obdurate he said I'd been wasting my time because you're the "Lord Haw-Haw'' of our age.
I suppose your silence operates in neat symmetry with that of your barrister on the same issues at your appeals process. You won't object if I record your failure convincingly to respond in my presentation to college.
THEN, pray ask me those questions again, if you feel I did not respond substantively. You will appreciate that I am also hard at work every day of the week on real history projects, and that answering letters from (basically unfriendly) correspondents does not rank very high on my priorities.
Your tutor sounds like an intellectually very ill-blessed person. Since he has mentioned the name of "Lord Haw-Haw" (left) -- William Joyce -- I recommend him to listen to the broadcasts of William Joyce one day (they are available on tape now); or, failing that, to read them in the BBC Monitoring Reports as I did back in the 1960s (he had over 2 millions listeners in the UK for every wartime broadcast, an achievement which speaks for itself); and perhaps your tutor, whom you did not name, might also read the book, I forget its title, containing Joyce's last letters from the condemned cell (below).
He was not afraid of death, he wrote in one, because the instant of agony that the hangman's noose would cause him upon leaving this life was as nothing compared with the pain he had caused his mother while entering it. I never met Joyce, and I hesitate to condemn sight unseen persons I have never met or known.
May I recommend this habit to your tutor, who seems, from your brief reference to him, to be singularly bigoted, tunnel-visioned, and even purblind. Of course, I confess, I may be mistaken, not having met him.
[Postscript: a reader informs me, Friday, July 29, 2005, The book "Hitler's Airwaves" contains a CD with a number of recordings of William Joyce's broadcasts from wartime Germany. It is readily available: http://www.addall.com/detail/0300067097.html ]