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Barry Smith has further comment on Mr Irving's motives in offering to settle the Lipstadt action out of court , Monday, October 18, 2004
Offers before the Lipstadt Trial
I READ with interest your exchange of views with my erstwhile fellow citizen, Richard Santana. One point that caught my eye was your statement that Penguin Books Ltd were willing to settle pre-trial, but that Professor Lipstadt was not.
In his book Lying About Hitler Professor Richard Evans makes the point that your first offer to settle out of court was not extended to Professor Lipstadt, and contained conditions that any publisher could not accept. The second offer dropped the conditions and was also extended to Professor Lipstadt, but was made only after considerable expense had been incurred by the defence in preparing for the case. The implication is that Penguin did not seriously consider either offer.
I would be interested to see your evidence that Penguin was willing to settle and did not do so under pressure from Professor Lipstadt. What grounds would she have to take legal action against them? If they were willing to spend in excess of two million pounds fighting you in Court why would they not spend that amount of money fighting Professor Lipstadt?
If in fact Professor Evans is correct then can anybody consider your pre-trial offer of settlement as anything other than a cynical PR maneuver?
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David Irving responds:
AMERICAN author Don (D D ) Guttenplan described Penguin's anxiety to withdraw, in his book on the trial, whose name I forget. There were however apparently arcane legal methods by which Mishcon de Reya (Deborah Lipstadt's solicitors) could then have proceeded against Penguin, I was told.
I suspect that Penguin decided to fight on for P R reasons, or political; their managing director, whose evidence was put to the court but not used, was one Andrew Rosenheim. One may reasonably conclude that his interests and motives did not necessarily coincide with those of the shareholders.
If Penguin had accepted my first offer, dated Sept 11, 1998, in which as you rightly note Lipstadt was not included -- as she was the most virulent libeller, and Penguin's libels were purely accidental -- I would have been in a losing situation either way: if I had won the action, I could not under US law (derived from New York Times vs. Sullivan; and the First Amendment) have proceeded in the US courts to recover any damages or costs awarded against her. So my offer was truly magnanimous.
You may believe "Skunky" Evans and his book if you wish; but which were the terms in my offer to Penguin than no publisher could accept? The payment of a trifling sum to a charity for the limbless? Surely not. The Lipstadt book was already dead, and copies were flooding back to the publishers, unsold, from bookstores around the country.
To which Barry Smith replies:
MOST informative. This was the first that I had seen that Penguin wanted to settle, and that piqued my curiosity. It is also the first mention that I have seen of the obstacles put up that would have prevented you enforcing payment had you won - it was all one-way traffic.
I think that the first point that Richard Evans made was that had Penguin settled that they would have been leaving their author high and dry. Secondly, he implied that settling would have been tantamount to agreeing not to criticise yourself or your work in the future, or indeed to say a cross word about any "Holocaust Denier" (in the sense of the word as defined in the Penguin trial).
The first point is simply good business -- if you want to attract good authors then you have to be known to stand by those you publish.
If the second point is true then one could fairly say that they would also have grounds to defend the proceedings.
Richard Evans also pointed out that the second settlement offer was made after the defence had incurred considerable cost in preparing for trial, and implied that it was a PR stunt more than anything. (Having said this he did not mention the obstacles to enforcing payment against Professor Lipstadt had you won - had he done so it may have left it to his readers to decide your motives for themselves).
I appreciate the time you took to reply -- the points that you have made are not lost on me.