Posted Wednesday, January 17, 2001

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Wednesday, January 17, 2001 (London)

10 a.m. at the High Court. Court of Appeal, Courtroom 72. Next to the big courtroom we had for the Lipstadt trial last year. We have the court "booked" until 11;15 a.m., but it takes an hour over that. Twenty minutes pass before Lord Justices Sedley and Potter come in. Potter LJ not unlike myself to look at, large and four-square and very English; Sedley LJ, different.

Potter LJ begins by saying they have already taken a view of my application, and want to state what would in their view be the appropriate course, namely that there should be a stay of any execution of Mr Justice Gray's order -- that I should pay a large fortune to the defendants -- until the appeal application is heard and disposed of. So that is that. We have won the point already.

There remains a lot of tidying up, as Miss Heather Rogers, the very capable barrister appearing for Penguin Books, is none too happy to be cheated of their prey as easily as that. It has however damaged her clients that we learned of the outcome of our first application (Sedley LJ's refusal) only through the press, when The Guardian rang up my attorneys. Sedley LJ says he takes a dim view of that.

Potter LJ then goes through my last night's answers to the defendants' list of questions -- thank goodness I did take the trouble to answer it last night, and to print three high-grade copies for the Court, just in case -- and, addressing paras. 22 and 25, says "David Irving rightly takes the point that the defendants have no need to know the source and identity of his contributors," and that I am concerned to protect those identities, "in the light of the content of this litigation and the high feelings aroused." Sedley LJ agrees at once that it would be proper for me to disclose the overall amounts concerned, but not the identities of any of the contributors.

Sedley LJ has a good grasp of the case and the essentials, and at the end of the day we have nothing to complain about. It is soon decided that the appeal should follow immediately on the determination of our application for permission to appeal, in Sedley LJ's memorable phrase the appeal should come "in line astern" after the application for permission, i.e. without a pause (if permission is granted); Adrian Davies, my barrister, says that we should estimate the appeal hearing to last three to five days, and we may well want to put in further evidence. At which Sedley LJ remarks that if they are just new documents it would be less problematic -- "are we only looking at a ring binder," he asks. "Is it to be another expert witness," asked Sedley LJ, "or something concrete?" Alas, at the words "concrete evidence" I laugh out loud.

Apologising if she might appear to whinge, Miss Rogers then whinges that this is the first she has heard suggested of "new evidence."

The judges settle at this stage on three days for the appeal. As Mr Davies says, the pre-reading will involve some 2,000 pages of transcript; but the two judges query whether the court will have to read the entire transcript, or just those parts to which their attention is drawn.

Penguin Books are aghast at the extra expense that they now face (they could have walked away Scot-free two years ago -- that was my offer to them then; and for just five hundred pounds paid to a charity for the limbless a year ago). "We can see the costs tap being turned back on," laments Miss Rogers, and she submits stoutly that there are no grounds for appeal.

The judges remind her that under the new Civil Procedure Rules she can no longer ask for security for costs against an appellant, no matter how impecunious, as everybody has a right to appeal if permission is granted.

After a fifteen-minute break for deliberations, Sedley LJ reads the Judgment. He recites the history of the action ending with Mr Justice Gray's -- in our view highly perverse -- judgment. In August last year we applied for permission to appeal and for a stay on the costs order. Sedley LJ applied himself to the matter and on December 18 refused our application, giving his reasons. That is how things have stayed until today. Penguin Books are opposing any continuance of the stay.

At the eleventh hour, continues Sedley LJ, Mr Irving has put in a draft affidavit ("draft," because we were unable to swear it yesterday evening or this morning, the Court office not opening until 10 a.m.). The affidavit states that I am without means to meet the huge costs ordered, and if the order were enforced it would create crushing hardship and put an appeal beyond my means.

Penguin Books on the other hand are a prosperous publisher. Penguin Books have asked questions on my affidavit (last night) and I have (also last night) submitted answers which, he says, "entitle Mr Irving to a continuance of the stay." "It seems to me equally likely," said Sedley LJ, "that Penguin Books ought to have the opportunity to serve any Statutory Demand on these solicitors should occasion arise."

We have already agreed that this morning privately between counsel however. He then goes into what he calls "the logistics of the application for permission." The work to be done in putting forward the application is the same as that for the actual appeal being heard. There will be no appreciable waste of effort in doing the work if the application is refused, as the appeal is on fact and detail. The right course is for the application to be listed with the appeal itself to follow immediately. Mr Davies has said there may be further expert evidence. That being so, we should apply in detail and promptly in advance with details of such evidence. His order therefore is roughly as follows:

(I) (1) a stay on the costs order until the hearing of the application and appeal, appellant giving the undertakings (a) to swear the draft affidavit forthwith (b) to answers on oath to the further questions in the letter of January 16 200 within fourteen days not including the identities of any individuals on the bank accounts provided. The answers to relate to all transactions since April 11, 2000, but to the contents of the Fighting Fund since January 1, 2000. (2) Stay on the defendants' undertaking that the information given as above will be disclosed only to persons within Penguin Books who have a need to know in connection with these proceedings and will otherwise be kept confidential. (3) On undertaking by solicitors through Counsel to accept service of any statutory Notice and petition that may be issued.

(II) Application to be listed to follow with appeal to follow. Three days allocated for the hearing. Time estimate to be subject to revision.

(III) Order that any notes to Penguin Books and Court to introduce new evidence given within 28 days of today with all supporting documents and skeleton arguments. Upon receipt of the evidence Court will give written directions for disposal of the application. Penguin Books to have 28 days from receipt of notice to make any submissions.

Potter LJ states that he concurs with these terms of the Order, and Counsel are to agree between themselves the precise terms of the Order.

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