International Campaign for Real History

In the High Court of Justice

DJC Irving

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Penguin Books Ltd and Deborah Lipstadt

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In 1993 American scholar Deborah Lipstadt published Denying the Holocaust, product of a research contract funded by an Israeli agency.

British writer David Irving claims that it libels him.


Defendants' Submissions
in accordance with the directions of Sedley LJ, Sept. 6, 2000

Website note: for reference purposes, we recommend that you point at this magic link to open the Grounds for Appeal in a separate window: link You can also simultaneously open the Judgment referred to, in PDF format (download-page).

This document is posted for the purposes of this litigation, to enable legal experts throughout the Internet to study it and the preceding Skeleton Grounds for Appeal and to contribute their expertise to either side.

Defendants' submissions (2nd version) in accordance with the directions of Sedley LJ of 6.9.00


1. The grounds on which the Claimant ('Irving') seeks permission to appeal ('the Grounds') are set out in his skeleton argument. These submissions therefore address the Grounds (references to paragraphs in the skeleton argument are given as G[paragraph number]).

2. Although in the course of these submissions, reference is made to a number of paragraphs in the judgment (cited by reference J[paragraph number]), a true appreciation of the way in which the various sections of the judgment cohere together, complement each other, and form an overall picture of the relative strengths of the parties' cases can only be achieved by a reading of the whole judgment.

3. These submissions will seek to show that the Grounds are selective, superficial and flimsy, frequently misstating or ignoring the true nature of the issues, minimising the crushing overall effect of the adverse findings against Irving and disclosing no sensible basis on which the judgment might be set aside or significantly varied. (It has not been possible in a document of this length to address each one of the Grounds individually: this should not be taken to mean that the Defendants accept the validity of any of those that are not specifically dealt with).

4. The relevant issues at trial were (in summary) (1) the meaning of the words complained of and (2) whether, in those meanings, the words were true, or sufficiently true to allow the application of section 5 of the Defamation Act 1952 (justification).

Meaning of the words

5. The meanings found by the judge are set out in J2.15. Subject to one minor exception (see G7), Irving accepts that those were the right meanings (see G6). The issue of justification therefore fell to be determined by reference to those meanings. In the event, the Defendants succeeded in justifying meanings (i), (ii), (iii), the first (general) part of (iv), and (vi).


6. The Grounds are fundamentally flawed in two main respects:

(1) The nature, purpose and effect of the Defendants' evidence at trial, and the nature and effect of the judge's findings on that evidence, are misrepresented.

(2) Contrary to what is asserted in G11 and G13, the judge's assessment of Irving's credibility as a witness was an important element in his judgment.

7. The judge gave a summary of his role in relation to the historical evidence at J1.3, which Irving adopts and from which the judge never deviated. It follows that the role of the Defendants' four historical experts was not to prove what had actually happened, but to lay before the court the evidence by reference to which, on the Defendants' case, 'any fair-minded objective commentator' (J7.6) would form his conclusions and the judge should therefore find that Irving was neither objective nor fair-minded but had deliberately falsified the evidence available to him.

8. The judge's overall conclusions on the second of those questions are set out at J13.136 - J13.159. The Grounds nowhere attempt a coherent criticism of those conclusions but are in large part directed to points of detail which, it is said, the judge got wrong. Two central features of the judge's conclusions on this part of the case which the Grounds ignore are:

(1) the number, gravity and 'convergence' of Irving's historiographical falsifications (J4.12, J13.140-13.144); and

(2) the inadequacy of Irving's explanations for these falsifications (J13.145-13.147).

The Grounds

Public interest: G10

9. Although the trial undoubtedly attracted a good deal of public interest, this is not, in itself, a reason why the Court of Appeal should give Irving permission to appeal. Before doing so, it should be satisfied that there are issues of public interest in the case which, in the exercise of its appellate jurisdiction, it ought to consider (always assuming, in the first place, that the grounds of appeal disclose persuasive reasons to think that, in respects which matter, the judge might have erred in the conclusions he reached). (The complaints made in G5 could only be relevant if the case had been tried with a jury; but it was not.)

10. This paragraph of the Grounds misstates the nature of the case. The case was not concerned with 'issues …of the greatest importance for the interpretation of the political and military history of the twentieth century', but only with the historiographical integrity and ideological motivation of a particular historian (see 6(1), 7, and 8 above). Thus the case was essentially a private dispute, whose context certainly excited public interest, but whose particular issues and their resolution involved no general questions of legal or historical interest.

Irving's credibility as a witness : G11-16

11. It is clear that the judge found Irving an unsatisfactory and unreliable witness. In J13.145 and J13.146, the judge recounted a number of the more obviously disingenuous and unconvincing answers which Irving had given in explanation of his historical 'mistakes', and he stated his conclusion at J13.147. Further striking examples of Irving's lack of candour are to be found at J5.69, J5.106, J9.13 and J13.95, J10.32 and J13.114, J13.16, J13.44, J13.95, J13.103, J13.106-7, J13.113, and J13.121-2 (this is not an exhaustive list).

12. These considerations, besides leading the judge to make adverse findings against Irving on particular issues, also formed one of the bases on which the judge was enabled to conclude that Irving's persistent falsification of the historical record was deliberate and motivated by a desire to make historical events fit his own ideological beliefs: J13.139, J13.163.

Relevance of the Defendants' motives: G12

13. Since justification is a complete defence and there was no plea of qualified privilege or fair comment, the Defendant's motives had no bearing on liability and could only ever have been relevant to the issue of damages (had it arisen).

The weight to be attributed to the evidence of the Defendants' experts: G17-21

14. As to G19, at trial, Irving attacked only Evans' motivation (he explicitly exonerated Longerich and Funke of any personal or professional hostility or bias and made no challenge to either Browning or van Pelt on this score). The judge evidently rejected Irving's absurd attack on Evans. As to G18 and van Pelt's expertise, see 18 below.

15. G20 and G21 are disgraceful: the Defendants' experts had done an enormous amount of work, which was the principal foundation of the Defendants' case (J4.11, J4.17) and which turned out to be the principal foundation of the judge's findings (see generally below). Moreover, the high quality of the experts' written reports, which the judge had read before trial, meant that the trial was a good deal shorter than it might otherwise have been.

Subject matter of expert evidence: G22-28

16. Although it is obvious that the words 'Holocaust denier' or 'Holocaust denial' may convey different meanings to different people, it is probable that, in the context of Professor Lipstadt's book, they should be regarded as terms of art (J13.92). If so, the evidence of Evans was admissible to prove their meaning.

17. In any event, this is of no consequence because the judge was quite entitled to adopt Evans' definition if he thought that it was apposite, as he clearly did (J8.1-5; J13.92), and the Defendants anyway succeeded in proving that Irving was a 'Holocaust denier' in whatever sense that term might reasonably be understood (J13.93-13.98 and J13.161).

Van Pelt's qualifications as an expert: G30-31

18. As the judge found, van Pelt is 'an acknowledged authority on Auschwitz about which he has written extensively' (J4.17(ii)) and an historian 'of the greatest distinction' who 'is outstanding in his field' (J13.10). The Grounds do not dispute those descriptions. Van Pelt, like Evans, Browning and Longerich, was called as an expert historian. The evidence which he set out and reviewed in relation to the existence of gas chambers at Auschwitz and its function as a centre of mass-extermination was derived from a variety of sources, including eye-witness accounts, contemporary documents, archaeological remains, photographic evidence and chemical analysis. This is the necessary and normal function of an historian, who would be open to serious criticism if he did not take account of such evidence.

Section 5 of the Defamation Act 1952: G32-34 (and 45)

19. G33 and G34 are absurd. The relevant allegation, which the Defendants did not attempt to justify, is the second part of meaning (iv) in J2.15 (contrary to G45, the meaning is not that 'Irving associates with violent extremists'). By comparison with the allegations which the Defendants' proved to be true (meanings (i), (ii), (iii), the first part of (iv), and (vi)), and having regard to the scale and quality of that proof (as to which, see generally below), this minor allegation pales into insignificance: see J13.137, 13.167.

Irving's treatment of historical evidence generally: G47-53

20. These paragraphs of the Grounds misrepresent the Defendants' case, which was not that Irving was a 'bad' historian, in the sense that he was, as a matter of fact, wrong in his interpretations of the historical evidence, but that he repeatedly and deliberately falsified it: J5.3-5.8. The judge found this case to be established and the Grounds do not, for the most part, address this crucial question at all. Nor do they deal with the equally important consideration that, apart from the bombing of Dresden, all the many falsifications which the Defendants established had the same tendency: the exculpation of Hitler (J13.140-13.142).

21. Finally, the Grounds fail to mention the important point that the topics which were examined by Evans in order to test Irving's historiographical integrity were not selected at random, but (with the exception of Dresden) were all derived from the 'chain of documents' on which Irving himself had repeatedly relied as showing Hitler's supposedly benign attitudes and conduct towards the Jews (J5.7, J13.11).

The (so-called) Schlegelberger memorandum (and the Wannsee Conference): G55-66

22. It is not understood why it is said that the memorandum is 'central to the appeal on the facts'. It was certainly not 'central' to the Defendants' case at trial: it was merely one (indeed perhaps one of the less striking) of a large number of examples of Irving's misrepresentation of the historical evidence (J13.9).

23. These paragraphs of the Grounds misrepresent both the significance of the issue and the nature of the judge's finding on it (J13.36). The Grounds do not address the substance of that finding at all, but merely make the inconsequential (and incorrect) observation that the document has been ignored by other historians (it is in any case a document of little or no historical importance: evidence of Longerich, Day 24, pages 23-24).

24. For a proper appreciation of all the evidence which the judge took into account in arriving at his conclusion on this issue, it is necessary to read J5.151-J5.169. A copy of the document is attached, from which it can be seen that the description of it in G57 and the second sentence of G58 is incorrect and that the judge's description of its salient features in J5.152 is accurate.

The deportation of the Berlin Jews and the Riga massacres: G68-85

Himmler's log entries for 30 November and 1 December 1941

25. It is accepted that the judge mistakenly transposed the dates of the two entries in Himmler's log. But this is of no consequence. What matters is that the Grounds do nothing to cast doubt on the correctness of the judge's findings on this part of the case.

  • The entry for 30 November 1941[1]

26. Contrary to what is stated at G70, Irving not merely admitted, but asserted, that his rendering of 'Judentransport' as 'Judentransporte' was 'a silly misreading' (Day 2, p289, line 6). Confronted the next day with evidence that, as long ago as 1974, he had known that the word was 'Judentransport' (singular), Irving shifted his ground and asserted instead that he had taken the word to mean 'transportation of Jews' generally (Day 3, pages 28-32): see J5.106. This was equally implausible because the word 'Judentransport' was qualified in the original by 'aus Berlin' (see 27 below).

27. The Grounds ignore the crucial point that, as he accepted at trial, Irving's representation of the entry in both editions of Hitler's War (1977 and 1991) suppresses the words 'aus Berlin' (J5.98, J5.106, J13.21), thus allowing him brazenly to transfer Himmler's prohibition from a particular transport of Berlin Jews to Jews in general. As J5.99 shows, G73 is a travesty of the evidence given at trial. See also the judge's conclusions at J13.21-J13.22.

  • The entry for 1 December 1941[2]

28. So far from being merely 'regrettable', the misrepresentation of 'haben' as 'Juden' was plainly material (J13.23), not least because Irving's explanation as to why it was retained in the 1991 edition of Hitler's War after he had been made aware of it was obviously disingenuous (J13.146-7); and also because it forms part of a pattern of 'errors', all of whose tendency was to exculpate Hitler (J13.140-142). These important points are ignored in the Grounds.


The suppression of parts of Bruns' statement: G79-80 [3]

29. The judge's damning conclusions are unassailable: even if there were force in Irving's contention that the second sentence of Bruns' recorded statement - 'they [the mass-shootings of Jews in the Ostland] are to be carried out more discreetly/cautiously ['vorsichtiger']' - lacked corroboration (which in fact it did not), the fact remains:

that no objective, fair-minded historian would deliberately suppress this entire sentence but would, on the contrary, recognise that it must be reproduced and given its due weight (whatever that might be);

that Irving's suppression of the words 'on that scale' (more correctly, 'of that kind': derartige) in the first sentence of the statement completely alters its sense; and, hence,

that Irving deliberately and perversely transformed the statement - which reported an order from Hitler that the mass-shootings were to continue (but more discreetly) - into a representation that Hitler had ordered that 'such mass murders were to stop forthwith' (J5.113-4).

Hitler's views on the Jewish question: G81-85

30. The Defendants' case on this topic (contrary to the impression given by the Grounds) was founded on a number of examples (eight or more) of Irving's falsification of the evidence. The case is summarised in J5.123-136 and Irving's response at J5.137-150. The judge's findings, based on all the evidence, are at J13.26-31. If these passages in the judgment are read in their entirety (as they should be) they constitute a devastating condemnation of Irving's historiographical methods and integrity.

31. The Grounds reveal no basis on which those conclusions can be challenged: with one trivial exception (G81), which ignores Irving's concession and his unsatisfactory explanations noted at J5.143, the individual criticisms made by the judge, damning as many of them are, are simply not dealt with at all; and their cumulative effect is also completely ignored. So, too, is their place in the overall convergence of the evidence as demonstrating Irving's invariable tendency to falsify history in order to exculpate Hitler (J13.140-142).

Goebbels' diary entry for 27 March 1942: G86-89 [4]

32. In the light of the evidence of Irving's manipulation and misrepresentation of this diary entry, and of the obvious inadequacy of Irving's explanations and counter-arguments, the judge's conclusion was inevitable, and the Grounds contain nothing to suggest otherwise. For the issue was not whether parts of the diary entry were 'hearsay', but whether any objective fair-minded historian would have deliberately suppressed them so as to produce a sanitised version from which the evidence of Hitler's complicity in the murder of the Jews in the General Government had disappeared. This was, in truth, another shocking example of Irving's deliberate falsification of history, fitting into the same pattern as all the others.



Endnotes to this section

1 The Defendants' principal criticisms of Irving in relation to his treatment of this entry are at J5.97-99, Irving's response is at J5.104-9 and the judge's findings are at J13.21-22.

2 The Defendants' criticisms of Irving are summarised at J5.100 and Irving's response at J5.110

3 The Defendants' criticisms of Irving are summarised at J5.113-114, Irving's response at J5.117-119 and the judge's conclusions at J13.24.

4 See J5.170-172 (introduction); J5.173-178 (Defendants' case); J5.179-186 (Irving's response); J13.37-38 (findings).

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