Archive/File: people/i/irving.david/libel.suit/transcripts/day032.18 Last-Modified: 2000/07/25 MR IRVING: I am not seriously worried about it because I am sure that your Lordship will accept what I said about the meaning. MR JUSTICE GRAY: Do you mind if I ask Mr Rampton what the . P-211 explanation of---- MR RAMPTON: I do not see it that any criticism at all can be made ---- MR JUSTICE GRAY: When was Dr Aaron Reich asked the question? MR RAMPTON: Where is that, my Lord? MR JUSTICE GRAY: It is paragraph numbered 4 on the second page. MR RAMPTON: I think that, unless I have completely misunderstood this clip of papers, I confess I have not paid it a terrific lot of attention recently, there is, I think, actually a page of the little clip showing that a fax was sent or received -- I can see. It has my own fax number right at the top of it so I think it is what Dr Longerich says he sent from my chambers. It looks like 16.48 on Friday, but unfortunately I cannot read it. MR JUSTICE GRAY: That was the problem I had which is why I asked when it had been sent. Leave aside when it was sent. What was the answer? MR RAMPTON: I do not know when it was sent. MR JUSTICE GRAY: Sorry, what was the answer from Aaron Reich? MR RAMPTON: There was one in the Washington archive as well. The reply says, whatever its date may be -- I can see it is 10th March. It is from somebody called Anna Row. She is writing to both Aaron Reich, who I think might be in New York, I really do not know, and to Dr Longerich. What she says is: "After some searching and help from Jurgen, . P-212 we were able to find a copy of the document in question. The citation in Moscow is, according to the two records" etc. etc., and gives the reference. "If a fax copy is desired we can send it along". MR JUSTICE GRAY: I follow all that and, as I understand it, not making too much of a meal of it all, there are two copies of this document, one in Moscow and another in Germany, the German copy having been provided from Moscow. That may or may not be satisfactory, but what I was really concerned to know is what attempts, if any, have been made to discover what other documents were in the same file, because I think the request was not an unreasonable one, that the other documents in the file might cast some light on the significance of Muller. MR RAMPTON: I simply do not know. If that is not addressed in Dr Longerich's note, I cannot give an answer about it because I was not a party to it. MR JUSTICE GRAY: That was one of the things that I think I suggested on day 30 or day 31, I cannot remember, Mr Irving should be given an answer to. MR RAMPTON: Plainly, I would submit, the position must be this. The reason why, not including the November 1941 document, Mr Irving tendered the other Schlegelberger documents is that, on one view of its dating, the other documents might be of some relevance. I assume -- this is an assumption -- that a distinguished and respectable . P-213 historian like Dr Longerich would not produce a single document from a file if there were other surrounding documents which, to his knowledge, had a bearing on its interpretation. MR JUSTICE GRAY: Yes, but he does not say so, that is the problem. He does not say that he has looked, or tried to look and failed. MR RAMPTON: In any event, since Mr Irving accepts the authenticity of the document, the fact that there are not any other documents around it leads nowhere. MR JUSTICE GRAY: We do not even know that, do we? We do not know whether there are other documents in the same file. MR RAMPTON: There might be a source, I do not know. In fact, I think I may have been guilty of not reading the message carefully enough. I read paragraph 1 of Dr Longerich's note which was prepared yesterday: "I am familiar with this document. A copy is available in the archival collection of the Zentralstelle in Ludwigsburg. This is a collection of documents which was handed over by the Soviet authorities in 1969 to the Federal Republic". It begs the question, I interpose there, how on earth it is that Mr Irving has never seen it. It has been there since 1969. "The document is accompanied by a covering page with an archival reference to the file where the original is kept 500.1.25. This is an archival reference from the Soviet archive in Moscow. Fons" -- whatever that . P-214 means -- "security police and SD, part 1 of the collection, file 25. I was in Moscow", says Dr Longerich "in 1992 for four weeks, and I looked at documents from this fons extensively. At the moment I cannot remember whether I saw the original of this document during my stay in Moscow, but I kept notes about this day and could reconstruct what I saw there. The notes are at the moment in Munich". That plainly does not suggest that he believes that there are any other relevant documents in that file. MR JUSTICE GRAY: It does not say one way or the other. He says he cannot remember. It probably is a point of absolutely no significance but, since it is something that Mr Irving has raised and I did indicate that I thought he ought to have an answer, I would still like such information as can be obtained from Dr Longerich to be communicated to him and to me. MR RAMPTON: I will try again. Given that it is accepted to be an authentic document, and given also that it is not perhaps a document that lies at the heart of the case though it has some significance obviously, I will do it. That leads me to make an enquiry, if I may, of your Lordship. MR IRVING: Can I just finish? MR JUSTICE GRAY: Yes. You have some other points? MR RAMPTON: My Lord, I am sorry, this is a connected enquiry, . P-215 if I may. That may take time. I do not know myself at the moment what date judgment is likely to be because obviously, if your Lordship is going to consider any additional documents, they will need to be got sooner rather than later. MR JUSTICE GRAY: I do not know either. I hope it will not be as long as you might fear. That does not tell you very much, does it. That is not intended to be delphic, but think in terms of a small number of weeks rather than a large number of months. MR RAMPTON: I was not trying to put any pressure on at all. For the sake of this exercise, I obviously need to know. If it is going to be in three or four days time, I probably will not be able to achieve it. MR JUSTICE GRAY: I think that will be unlikely. That is all I can do. If you can obtain it as soon as possible -- if you cannot, so be it. We will have to manage without. MR RAMPTON: We will do what we can. MR JUSTICE GRAY: Mr Irving, you have listed some other matters. MR IRVING: I wish to conclude on page 104, if I may. MR JUSTICE GRAY: I am so sorry. Hang on, why are you telling me about that now? MR IRVING: Okay, then it is wrong that I should let your Lordship know. MR JUSTICE GRAY: Is that not relevant only to costs? Tell me . P-216 if I am wrong, but that would be the way I would see it. MR IRVING: Not only the costs, my Lord, there are other features of part 36. MR JUSTICE GRAY: Let me just read it. MR IRVING: My understanding is that your Lordship was not informed of what was in the offer, but that offer was made under the new rules. MR JUSTICE GRAY: I do not see the relevance of telling me that unless and until it comes to the question of costs. MR IRVING: Yes. The question of costs is covered by the next paragraph, which is that I do not propose asking for my costs in this action. MR JUSTICE GRAY: It is premature to be telling me that. MR IRVING: Not at all, my Lord. This is surely the place when I can put this into your Lordship's mind and that deals with it, puts it out of the way. MR JUSTICE GRAY: It is true, but I would only address that question once judgment had been given. MR IRVING: But I do ask your Lordship to give judgment in the terms and premises set out in my writ and statement of claim, namely damages, including aggravated damages for libel and an injunction restraining the Defendants and each of them, whether by themselves or agents or otherwise from further publishing or causing to be published the said or similar words defamatory of myself as claimant. MR JUSTICE GRAY: Yes. You gave me that little list of other . P-217 things you were going to raise today. Standard of proof in graver libels, I think you know that I believe I know what the law is on that so you need not trouble with it, unless you want to. Is there anything you wanted to say particularly, Mr Irving? I am not stopping you, I just do not think it is really necessary. MR IRVING: It is trite law, is it not, my Lord? MR JUSTICE GRAY: It is. MR IRVING: We had this discussion earlier and I thought it important -- in fact it is obviously very impertinent of me to draw it your Lordship's attention. MR JUSTICE GRAY: It is not at all, no. I have it in mind anyway. Section 5, I think we have resolved that in an earlier discussion today. MR IRVING: We have dealt with 4 because I have now done it. MR JUSTICE GRAY: Yes. Costs we have decided it is premature. Now I realize time is passing but it is obviously sensible to conclude everything today, and I hope I can perhaps do it in this comprehensive way. You have seen that in the Defendants' detailed written submissions they recite various concessions -- you may not like the term but they call them concessions which they say you have made about such matters as shootings in the East, numbers killed, whether it was systematic, whether Hitler knew about it, and also in relation to deaths at the Reinhardt death camps. Do you accept you did make those concessions? . P-218 MR IRVING: The answer is I have not seen them, but I know of them. I have not had any time at all to read that big thick thing. MR JUSTICE GRAY: Then I do not think it is fair to ask you to give answers on the hoof. What I will ask you to do though is this. If you either dispute that you ever made the concessions that the Defendants say you made, or you want now to reconsider ---- MR IRVING: Resile. MR JUSTICE GRAY: Well, I was trying not to use that word actually -- to reconsider, then would you write to me and to the Defendants, shortly setting out what you say you said, or what you now say? MR IRVING: Yes. MR JUSTICE GRAY: Because I do not want to be under any misapprehension. MR IRVING: Purely on the matter of concession? MR JUSTICE GRAY: Yes. MR IRVING: I will certainly do that within the next two or three days. MR JUSTICE GRAY: Good. Is there anything else, Mr Rampton? MR RAMPTON: Yes, there is. I should like to apologise personally -- I dare say I am right in thinking it was directed at me -- for not being able in one moment to restrain my frustration. I apologise for that. MR JUSTICE GRAY: There is no need for that. . P-219 MR RAMPTON: Yes. I should at my age know better. But, as your Lordship will remember, it is sometimes extremely difficult to restrain oneself when one can actually hear the evidence of one's own witnesses being misrepresented. I am not going to do a trawl through what Mr Irving has said. Your Lordship has the evidence. But there is one thing which he said which I really do think needs to be corrected. If this is a case without this kind of high profile, I might say nothing at all. Mr Irving said that Professor van Pelt had no explanation for the many oddities in Bischoff's letter of 29th June 1943. That is an important document. In fact, when I re-examined on 2nd February, that is day 14, page 3 to page 13 at the end, by reference to the little clip of documents by which Mr Irving sought to show the uniquely ---- MR JUSTICE GRAY: Yes, I remember that quite well, all the oddities, as it were. MR RAMPTON: In fact, he explained every single oddity, except the missing year date in the reference. MR JUSTICE GRAY: Yes, I remember that quite well, but thank you for reminding me what the reference is. MR IRVING: My Lord, in view of my traditional right to the last word, I would reserve the right to write your Lordship a letter setting out the oddities in that Bischoff letter, with a copy to the Defendants. . P-220 MR JUSTICE GRAY: No. I do not think I am going to invite that. I feel fairly deluged anyway with paper. I really do. I have in mind both what you said were the reasons why you at that stage disputed the authenticity, and I know you still question the authenticity of that document, but I also have in mind, in a general sense, the explanations that were given by Professor van Pelt. Now, anything else? MR RAMPTON: I hope what I am going to say will be a joint request. Because of all, as your Lordship can see, the interest in this case, much of it from overseas, I would ask that, perhaps a bit unusually, we could have - - whenever the judgment may be, that is not what I am asking -- some reasonable advance notice of the date. MR JUSTICE GRAY: Yes. I am anxious for all sorts of reasons, including the consideration you have just mentioned, that it should happen sooner rather than later, but I do not know how much notice is in practical terms really required, because I will not know until quite shortly before I actually finish that I am actually going to finish on a particular day. I mean two or three days. Is that far too short? MR RAMPTON: The only thing perhaps, if I might gently suggest it, is your Lordship might in fact finish before the day of judgment, if you know what I mean, in other words finish writing and have a fixed day, so that, even if your . P-221 Lordship finished before that day is reached---- MR JUSTICE GRAY: Yes, all right. MR RAMPTON: I think a week actually would in all the circumstances ---- MR JUSTICE GRAY: That is what you want? Mr Irving, I do not suppose you disagree with that, do you? MR IRVING: I have my own reasons for wanting to have a lot of advance notice please, yes. MR JUSTICE GRAY: I will do that. I think that is sensible. You are going to forfeit the last word, are you? (The court adjourned) . P-222
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