Posted Wednesday, January 15, 2003

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What your Lordship has is a bundle of invoices which Penguin have paid.

My Lord, Penguin have not paid anything. The true position is that their insurer was meeting all the bills.


January 13, 2003 (Monday),

11:14 PM an email from Adrian Davies [my Counsel] reports: "I've just had a look at the Court Service website, which suggests that we have the whole morning allocated to the hearing of this case, and quite rightly."


January 14, 2003 (Tuesday),

I take Jessica to school, she is aware that it is a big day and asks if I am off to court; yes.

10 a.m. at the High Court. I take 15 pages of handwritten notes. Professor Robert Van Pelt arrives, and says that it turns out that the hearing is in fact starting at ten-thirty, not ten. I invite him for a coffee and we have a friendly chat about history and sources. His expertise is evident, unlike that of Richard "Skunk" Evans.

10:30 a.m. to 12:30 p.m.: hearing of our application before Mr Justice Charles Gray in Court 14: the same old oak panelled courtroom in which in 1970 I sat for three weeks during the PQ.17 libel action, and again on April 11, 2000 to hear the same Mr Justice Gray pronounce his savage and perverse judgment on my action against Deborah Lipstadt and her cohorts, the publisher Penguin Books Ltd.

Of course, I have learned a lot more about the law and about this particular judge since then. Once again Heather Rogers, Gray's old junior, wreathed in smiles, appears in front of him for our opponents. She is a nice enough person, but I wonder if this, coupled with the fact that the case is to be heard by Gray, does not tilt the whole outcome against us from the start.


ADRIAN starts by saying that the original libel trial began almost three years ago to the day. In the hearing on costs on May 5, 2000 however Penguin Books had "seriously misled" Gray with regard to the payments to their lawyers -- despite what they had claimed, both to Gray and in The Times, they had not paid a single penny themselves. So they were not entitled to recover any.

Right at the start, at page 3 of the transcript of May 5, 2000, Heather Rogers says, "What your Lordship has is a bundle of invoices which Penguin have paid." This was just untrue, and they have admitted it.

"My Lord," says Adrian, "Penguin have not paid anything. The true position is that their insurer was meeting all the bills."

He draws the analogy of a pedestrian injured by a taxi cab, whose hospital bills are met by medical insurance: the insurance company has "made him whole," in the legal sense, and he would be quite wrong to proceed against the taxi cab driver to recover his medical costs. (The insurance company could claim, not the pedestrian). The law is quite plain on this.

Gray sniffs. "That may be true, but that is also true of a large proportion of the litigation that comes before the Courts," he says, wilfully missing the point in law (Adrian cites the relevant passage in Guttery vs. Sainsbury, from his Skeleton Argument; it is quite plain, and Adrian points out, "There is no sensible difference between the cases.")

After two hours' legal argument however, Gray deftly rejects our applications all and sundry, without allowing us one inch. He says, "If your point of law is right, it is a good point. But it is all rather futile." Adrian's knowledge of the Law on Costs is infinitely superior to Gray's and Miss Rogers', and he has put up an eloquent and magnificent fight; on some points he flatly stated that Heather Rogers is quite wrong on the law. Gray, unnerved, allows him this in one or two points, but still refuses our applications.

After he -- yet again! -- grants Judgment against us, Penguin ask for £10,000 costs for the day including "ten hours" work of a partner in Davenport Lyons, and also for a wasted-costs order. Gray refuses the latter outright (which would require our having made a frivolous application not founded in law), and cuts the costs allowed against us to £6,500. Which of course they stand little chance of getting.


AT the end of the day Adrian is bullish and keen to go straight to the Court of Appeal (leave to appeal is nowadays formally denied, so we must apply for that too): he says that Gray is quite wrong on the law where he has refused our main points -- that the payment by the insurers meant that Penguin had suffered no loss whatever; and on others. Gray had sarcastically said that if he was right on the "insurers" point, it would merely mean that the insurers could proceed against me, after Penguin was forced out.

Quite possibly, but that is not the point in law, and it is not a proper answer: Penguin lodged the petition, not the insurers. It is all very reminiscent of the main Lipstadt trial, where the same Mr Justice Gray blithely found for the defendants on almost every single point of their defence, no matter how perverse. He goes 150 percent on each occasion. His peerage is safe.

To fight the final stage in the Court of Appeal will cost me around £5,000, which I shall now have to raise from the fighting fund. I had handed over a large check to Amhurst, Brown, Colombotti this morning, and I now instruct them to secure the transcript of today's Judgment at once. They are hanging in well, and so am I.

1 p.m. back at the flat. A Xerox engineer has called in my absence, and left a phone message: Aaargh! Kevin comes 1:45 p.m. and we drive to Public Record Office: he is searching out Himmler materials for me, and I am ploughing through Churchill's secret top secret 1944 files. I feel very weary at 6 p.m. and we break off half an hour early. Drive back through thickening traffic, it is 7:30 p.m. by the time I am back in Mayfair.

On our website this morning we had the streamer: "Today. Tuesday: Shootout Day in London as High Court hears Mr Irving's application to overturn £2.6m payment order after Lipstadt Trial result: Her Publisher 'lied to court'." In the evening, I just remove it without trace. I shall notify those supporters who inquire of what is happening, but keep the others guessing.

Work on Heinrich Himmler from some fine British materials until 1:45 a.m. or later.


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