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 Posted Tuesday, January 26, 1999

High Court grants Deborah Lipstadt partial Injunction against this Website

The writer's diary record

Caricature by David Smith

FOR THIRTY-FIVE years author David Irving has kept a private diary. It has proven useful in countless actions. For the information of his many supporters he publishes an edited text in his irregular newsletter ACTION REPORT.


British writer David Irving is suing American professor of religion Deborah Lipstadt in Libel, for lies about him contained in her book Denying the Holocaust, which she wrote at the behest of Vidal Sassoon, Yad Vashem, and other similar agencies.

The action will be tried at the end of 1999. In a hearing in chambers at the High Court on January 26, 1999 Prof. Lipstadt's attorneys pleaded that the Court order Mr Irving not to publish her documents and witness statements on this Website.

JANUARY 26, 1999 (Tuesday)
London, England


I WORK until 5 a.m. on the Website and the affidavit. A cheerful Black electrician comes at 8:45 a.m. and replaces this apartment's burned out master switch, hammering and drilling all morning. I am up again at 11 a.m. to complete the affidavit and annexes.

A whoop from the kitchen, as the power comes back on at 11:40 and the machine churns out a ten-page fax from Professor Deborah Lipstadt's solicitors Mishcon de Reya: they have made an appointment this afternoon for a judge in chambers to hear her application for an injunction against my Website. The judge hearing the application will be Mr Justice Moses. Peals of ironic laughter from my staff. I say that I am sure that Moses J. will bend over backwards to be fair, and that if he offers to recuse himself I shall state that I find that most offensive. [...]

Complete work on all affidavits etc., leave at 1:10 p.m.; I swear it, and then by taxi to the High Court. It is 3:30 p.m. before our case comes on. Mr Justice Moses is perhaps the same age as me, elegant, slightly fleshy, educated and quiet spoken, murmuring simply "Yes," from time to time as he takes each point in. We settle down in three rows of seats -- I take a seat on the left hand of Moses, Mishcon's team of four lawyers and barrister on his right hand.

Their barrister, whose name I once more have not caught, deftly sets out Professor Lipstadt's complaint: I have offended repeatedly against the Rules of the Supreme Court, he says, by posting the most intimate documents from her Discovery on my Website last spring. This is common ground, and I un-posted them within hours of Mishcon protesting. There are just placeholders at present, marking where the embarrassing documents once were: the documents themselves will be replaced as soon as they are read out in court during the trial. The barrister smoothly continues: they served Professor Lipstadt's witness statements on me last Friday at 5 p.m., and by yesterday, Monday, at 9 a.m., on checking my Website, they find that I have posted all thirteen statements. This, they claim, breaches Order 38, rule 2A, paragraph 11, which indicates that witness statements are confidential and can not be used for any other purpose than the proceedings, until the trial begins.

MR JUSTICE MOSES at once seizes the salient points. He has read the very full affidavit which I have sworn, opposing the Mishcon application; how, he asks the barrister, can Mr Irving conduct inquiries into these witnesses and their credibility, if he is not permitted to show those statements to anybody else?

It is at once clear that the peals of Homeric laughter from my staff were not justified, and that my confidence in the Court's innate integrity was. I lay aside the pen with which I have been making notes. The barrister replies that it would surely suffice for me just to list the names of the witnesses: that is already a concession.

Eventually the judge invites me to speak. I have placed the 1945 General Bruns interrogation report from my Website (overheard testimony of 1941 mass shootings of Jews in Russia) on top of my bundle, and he asks why; I remind him that Mishcon have quite gratuitously referred to me as a "Holocaust denier" at the start of their affidavit, and that I need scarcely elaborate further. He takes the point.

On the Lipstadt documents produced in Discovery the law is clear, and I do not argue. They cannot be published. Period. Until the trial.

LevitasOn the witness statements, however, I argue that I have a right to regard posting them on my Website to ask my readers for facts about these witnesses, e.g. the communist agitator Daniel Levitas (left) and the KGB professor Vladimir Tarasov, as a proper use for these legal proceedings.

Somewhat to my consternation, the judge expresses profound horror that I have appended a rather smudgy photograph of Mr Levitas as a footnote to his witness statement. I reply that people who were indignant at his methods of standing up in the middle of my Atlanta lecture, and slowly photographing every section of the audience, will need to be reminded that this was the man, if they are not aware of who Levitas is.

I argue that it is not enough just to list the names: my readers must know what their separate allegations are, e.g. that I called members of the Washington State University "assholes" at the April 13, 1998 lecture (I did not, as the videomovie will show, but two of Professor Lipstadt's witnesses, no doubted wholly independently of each other, state that I did).

hardly "assh*les"A section of the enthusiastic audience at Washington State University, Pullman, which gathered to hear Mr Irving on April 13, 1998

Mr Justice Moses rules that I should only summarise those parts of the statements which I wish to test. Another concession, although to make such a selection, of course, puts valuable tactical information in the hands of my opponents.

I say, "I cannot see what Prof. Lipstadt is complaining about. I posted her entire Defence to my Writ, and left it uncontested for six months before I posted my Reply," although it was served on her the very day after her Defence. I add: "Now I have posted her entire witness statements, without altering one dot or comma. I would far prefer to have my witness statements posted in full, rather than in a bowdlerised or edited form." But since it has retreated into this cul de sac, the Court is unable to backtrack. This is the ruling that is made, and the edited statements will be posted in the amended form as ordered later this week.

He agrees that there should now be an injunction against me. Rejecting Mishcon's pristine typescript draft, Mr Justice Moses invites us to withdraw to draft a suitable Order.

At 5:30 p.m. we are back in his chambers. He whittles the Order down still further. Mishcon have applied for an Order that I give them a list of all my staff who have had sight of their documents; I object that they would hardly want to provide me with a list of all their staff. Chop. When I ask him to add the words "unless already in the public domain", to the order that I not post any of the documents appended to the statements -- if they add, e.g. a clipping from The Daily Telegraph, they can hardly claim that is privileged, he asserts that it belongs to the collection made by the witness and is privileged as well. Chop.

I must say I find this hard to grasp. Anthology rights in a bundle of documents? But there we are. He asks me if I have any further submissions, and I do: on costs, which will probably not run to less than £7,000 for this application.

I point out that my own affidavit ends with a statememt that if successful I ask for no order as to costs. He has moreover drastically cut back the Order as originally sought by Prof. Lipstadt -- "Less than fifty per cent of the original remains," I venture to say. I am about to ask for an order for "costs in the cause" when he takes those precise words out of my mouth.

DO I WISH leave to appeal? Indeed I do not. I would have sought leave if he had made a different order on costs, but the rest of the Order was very much what I had in mind, I say.

Most satisfactory, and my high-powered legal friends congratulate me loudly during the evening. Mr Justice Moses has now disposed that it is quite in order for me to post relevant extracts of Lipstadt's witness statements on the Website, in so far as necessary for the proceedings. His demeanour has confirmed my faith in the integrity of the British judiciary.

I am owed four hours' sleep from last night alone, and catch up on the sofa in the evening. Jessica tramples up and down on me on various pretexts.

At 11 p.m. D-- phones. The New Yorker February 1, 1999 edition has published a lengthy review of the new Boston film about Fred Leuchter, entitled "The Friendly Executioner," and makes a passing reference* to the "loathsome" Mr Irving. scalesI have been called worse. I have Deborah Lipstadt and her book to thank for this international bile machine. The author's name is Mark Singer. Well, some of us get named after sewing machines, and others after prophets. We can't all be called Moses.

© David Irving 1999.

* Note: The full text by Mr Singer in the New Yorker reads: "He [Leuchter] was embraced by the loathsome British historian David Irving--described by Ron Rosenbaum, in his book, 'Explaining Hitler,' as the Führer's 'chief postwar defender'--who extolled the 'gruesomely expert author' of 'the Leuchter Report' and labelled its results 'shattering' and 'truly astounding."
[J]ANUARY 1999
London, Engand

WONDERFUL THING this Internet is. Somebody on the other side of the world reads what I have posted a day or two ago about the Canadian gentleman Mr Bernie M Farber, one of the witnesses on whom Professor Deborah Lipstadt (Emory University, Atlanta, Ga.) will rely in her defence of my libel action.
   Oops -- turns out that Mr Farber is a public advocate of torturing prisoners. As Amnesty International have stated, not a very fashionable view.
   What rotten luck Lipstadt and her star lawyer Anthony Julius are having with their witnesses: first there was the West Coast gentleman Jonathan Mozzochi, who turns out to have had a police record as a skinhead gangleader...Then Warren Kinsella turns out to have cost HarperCollins a packet in libel damages...
    Now, I am reminded that on page 18 of Ellen Jaffe McClain's fine book Embracing the Stranger, Basic Books, New York, 1995 ("an in-depth survey of the social factors and stereotypes in the Jewish community and your society at large that may affect the intermarriage experience") the author speaks of Prof. Lipstadt's trenchant opposition to the intermarriage of Jews with non-Jews.
    "Although people like Deborah Lipstadt, the Emory University professor who has written and lectured widely on Holocaust denial, have exhorted Jewish parents to just say no to intermarriage, much the same way they expect their children not to take drugs, a large majority of parents and (more than a few rabbis) are unable to lay down opposition to intermarriage as a strict operating principle."
    In a piece mockingly titled, "Guess Who's Coming to Dinner?" one Canadian noted on June 28, 1996 on the Internet: "It seems that it is other people's exclusionary chauvinism Deborah Lipstadt disapproves of; she damns it as 'racism' and what-not. . . . Different strokes for different folks, I guess."
    I guess so too: in fact I guess there is a streak of hypocrisy in most of us. Here in England, we are fighting racism tooth and claw: yet nobody dares murmur, at least out loud, about the Black Police Officers' Federation that has been formed.
    In Miami, where I shall be later this week, the local newspaper The Miami Herald -- one of the five great newspapers of the United States -- regularly displays advertisements for marriage agencies which announce that they reject all non-Jewish applicants. In Australia the Anti-Discrimination Tribunal has expressly allowed a Melbourne woman to run a dating agency exclusively for Jews.
   Personally, I too am happy the way I was born; uh, hold on there, isn't that a racist thought too? square


IHAVE a huge backlog of paperwork to deal with before I can leave London, in a few hours' time.

I work all night. Jessica shows up sleepily around 7:15 a.m., expressing bafflement that I have got up so early. Her Mama explains that I am leaving for America in a few minutes' time. "Is it Thursday, then?" asks Jessica. It is, and already she is spelling out her list of desiderata, most of which involve Barbies. Benté asks my phone number in Key West; I say don't know it yet, and I'll let her have the number as soon as I get in; but she is to give it to nobody else -- security, I add, at which paranoia she scoffs out loud. I explain that I want to be unrecognised, and write in peace.

I stay awake until the Virgin-Atlantic 747 is aloft, then drop off into several long and unsatisfying sleeps; my head snaps forward, I slump into the seat, I miss the meals, I wake, I read a book -- I have started Hannah Arendt's Eichmann in Jerusalem -- then fall asleep again. I work for three hours on the Website until the computer's battery gives out. Once or twice I go to the rear and look down through almost solid banks of white snow clouds onto the southern tip of Greenland, then Gander as we fly high overhead.

Land at Miami at 3:15 p.m. How gorgeous the hot-wet-flannel that hits you in the face as you step out of the plane. Hertz refuses to rent a car to me, so in the sweltering heat I walk round to the Avis lot and rent a car there, five dollars cheaper in fact. A car which in England would be nearly luxury in size, rents here for $26 a day. I finally set out down the turnpike at 5:30 p.m.; I call at Office Max to stock up with paper and envelopes: a packet of 500 regular white envelopes costs $3.39. A loss-leader? The stationery equivalent of the girl in fishnet stockings at the door of the near-beer joint? How cheaply the Americans live. They surely don't realise how fortunate they are. I head off southward down US.1 to a month of total anonymity.

IT IS still light at seven p.m.; in England it is dark at four. I arrive at the Rusty Anchor at 9:10 p.m., and have a quick bite of fish and chips. Smiles all round. Here everybody knows me, but nobody knows my name. Then on to Old Town Key West; from a lock-box outside the long-closed estate agent, I pick up the keys of the tiny cottage I have rented for the month -- it is smaller than the brick slave-quarters I saw years ago at the plantation outside Charleston, South Carolina, where they filmed Gone with the Wind (Goebbels' favourite Hollywood movie).

Aaargh: none of the keys fits the door. Thwarted, and numbed by exhaustion, I settle down in the car's front seat instead, and fall fast asleep.

FRIDAY: Awake at 7 a.m. The car's interior windows are steamed up. I drive to the Croissant Shop for a snack. How nice to be just one of the town's thousands of nameless visitors. A comforting, velvety famelessness. At eight a.m., Roger at the estate agency sheepishly admits that he mixed up the keys. I carry the heavy trunks of equipment into the cottage, and start setting up my office to write. I phone Benté; she says that the bank reports no money has yet arrived from the investors, and Cattlin is going off at midday today and at midday on Monday. He will cover the gap up to 2 or 3,000 he says. This could get very awkward indeed.

I RESCUE my bicycle from under the tree where I chained it in August; it is beginning to rust, and I take it to a bike shop for minor repairs. At the printers' shop I arrange to print the next Focal Point publications. Several times I stop at the barbers', anxious to get my regular $8 haircut. Each time the sign on his locked door has advanced an hour: back at 2:30 becomes back at 3:30 and so on. At five p.m. he is at last in. "How much?" he asks, and I say, "All of it, right down to the bone. I don't want anybody recognising me down here."

I go on-line. There are 42 e-mails to deal with. A 8 pm. at last I go over to El Siboney Cuban Restaurant for a snack. I have never been to this one before.

As I pay my bill, the middle-aged waitress, with whom I have chatted in flawless accent-free Spanish all evening, or so I thought, sidles up to me: "Excuse me señor, but aren't you an English writer? Is your name Irving?" I assume that somebody is putting me on, but no. She continues, "I was in Spain some years ago, and I read a book with your picture in the cover. La Guerra de Hitler," she confirms. I escape as fast as I decently can. Later, I return -- I have left my gafas on the table -- and slip a two-dollar propino into her hand. The game is up: she knows my name, and I can't have people putting it around that David Irving, this gringo with the crew-cut, doesn't know how to tip handsomely.square


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