27, 2004 (Friday)
AT twelve noon exactly we walk into the Court. Registrar Jaques again hears the matter [Deborah Lipstadt vs. David Irving and the Trustee of his seized estate]. The hearing, set down for fifteen minutes, lasts two hours -- well into his lunch break.
It revolves around the question of my historic "archive", collected during forty years of writing and seized in May 2002, which the Trustee is currently housing in a warehouse in Brighton. The question to be decided is whether it is valuable or not. An expert should survey it and decide.
I want to point out that it is all immaterial anyway, as it is 100 percent certain that the archive and library will be returned to my possession eventually, as a result of my own application of October 15, which the High Court will eventually hear at the same time as Lipstadt's more recent application for everything to be handed to her. But today I do not speak: I am a silent observer in the back row of the Registar's Court room.
The Registrar begins by saying that he blames himself for leaving open last time (February 9) the question of who pays the "expert," as that is why we are inevitably back here today. Andreas Gledhill, counsel for Deborah Lipstadt, speaks well, but on balance my own, Adrian Davies, is better -- less stern and clipped in his manner, though sometimes slightly indistinct in his elocution. The two barristers are both experts in the Chancery division, but have different styles.
The final decision after much argument back and forth is this: that the "expert" (they avoid the phrase "expert witness" which has a precise meaning in law, e.g. the expert witness Richard "Skunky" Evans) will be an academic historian appointed by Lipstadt, and not by the Trustee as Registrar Jaques himself had proposed last time (Gledhill submits that the Trustee is manifestly no longer neutral as between the parties); but he also directs that Lipstadt shall also pay the expert's costs. That will please her, they will run into thousands of pounds! Gledhill's half-hearted suggestion that she should be able to recover the costs from the estate if the archive is sold for a profit, is not addressed. It is all academic anyway, as my application for the return of everything to me will succeed in the long run.
Adrian makes effective use of the fact that Lipstadt has taken back to the United States several thousand pages of the documents which I provided in confidence by way of Discovery, and has published them willy-nilly on her university's website -- including my private copyright letters and diary pages of the most private nature, which were never in the public domain. This is a very serious contempt of Court, as her solicitors must have warned her.
I am rather concerned therefore to hear Stewart Perry for DLA, the Trustee's solicitors, mention that her first expert, Dr Tobias Jersak, (right), of Stuttgart University, was allowed into the warehouse alone to probe into my archive for five whole days. Afterwards I discuss this with them outside, and I asked DLA to tell Mishcon "without prejudice" that provided Jersak puts back everything he has taken, and makes my archive whole again, I will drop the matter and not proceed against him for theft.
Perry says they did not catch him thieving, but he was found to have accidentally left stuff aside that he was clearly intending to take. I say that if Jersak was in there for five days, he presumably successfully took stuff on the other days too; I was unable to sleep the night after I learned of that.
Registrar Jaques directs that the new expert, whoever he is, shall be allowed to access the storage in Brighton to assess the archive's value, but that the Trustee and I are to be allowed to supervise his visit. Quite right too -- there must be no more thieving of my files.
One unusual point: when Registrar Jaques raises his eyebrows at the Trustee's surprising contention that there are no funds in the estate, and indicates that he has heard that line too often before to believe it, Stewart Perry reveals that they have had to set £45,000 aside to meet a claim from Parforce UK Ltd.
Outside, we briefly discuss the thieving by Jersak and other matters. Perry says something about "you at Parforce ," and I point out that Parforce is not me, and that I have no connection with the company.
In short, Registrar Jacques has read the files (last night, he said) and was well informed of all the issues. Gledhill will now draw up the Order as directed. It will also state that nothing can be disposed of pending the hearing of the two cases in full court, before a Judge, later this year.
Adrian and I leave the Law Courts at two p.m., well pleased. The other side -- both Lipstadt and Baker Tilly -- will have appreciated by now that I am a fighter, and do not take things lying down.
One ironic novedad: Lipstadt will now find herself unable to visit England so long as she remains in contempt of Master Trench's Order and continues to violate what used to be called the "implied undertaking" -- given on using an opponent's documents which have been disclosed under Discovery rules. It is ironic: she now effectively finds herself banned from a country, too, unless she wants an unfriendly visit from the High Court tipstaff, who will escort her straight to Holloway -- or Pentonville, as the case may be.