International Campaign for Real History
IN THE COURT OF APPEAL                 2000/2095


In the High Court of Justice

DJC Irving

- v -

Penguin Books Ltd and Deborah Lipstadt

Quick navigation

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.


Claimant's Reply to 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 Defendants' Submissions in a separate window: link You can also simultaneously open the Judgment referred to, in PDF format (download-page).

Claimant's Reply to the Defendants' Submissions of 3rd October 2000

1. For the Court's ease of reference, the Claimant will adopt the Defendants' scheme of numbering, so that references to the numbered paragraphs in Gray J's judgment of 11th April 2000 are prefixed with the letter "J", and references to the numbered paragraphs in the Claimant's skeleton argument in support of his application for permission to appeal are prefixed with the letter "G". References to the numbered paragraphs in the Defendants' Submissions in Answer of 3rd October 2000 will be prefixed with the letter "A", and references to the numbered paragraphs in these Submissions in Reply by the letter "R".

2. The Claimant entirely agrees with A2 and A4. The Claimant also agrees with A7, subject to the proviso that Irving does not accept that (contrary to what is suggested in the first sentence of A7) Gray J always followed his own (admittedly and averedly correct) direction at J1.3 (" . . . it is not for me to form, still less to express, a judgment about what happened . . .").

3. The Defendants lightly dismiss G5 at A9. They are wrong to do so. While in an ordinary case it is less difficult for a judge sitting alone than for twelve jurors to put out of mind press reports to the great prejudice of one of the parties, still " . . . when a judge assumes the ermine he does not divest himself of humanity . . ." (per Lord Macmillan in Law and Other Things, CUP, 1937). Given the scope and extent of the hysterical media campaign against Irving, which continued unabated throughout the trial of this quite extraordinary case, Gray J (only recently appointed to the bench) must have been all too acutely aware what journalistic vilification awaited him, were he to find in Irving's favour. That consideration cannot but have preyed upon his subconscious if not his conscious mind. Irving is therefore fairly entitled to make the point that he does at G5.

4. Contrary to what is suggested at A5, G7 cannot sensibly be categorized as "minor." As to the Defendants' alleged success in justifying J2.15 (1) (e) (described at A5 as J2.15 (vi)), see J13.7.

5. While the Defendants claim (A17) to have proved " . . . that Irving was a 'Holocaust denier' in whatever sense that term might reasonably be understood," J13.93 to 13.98 and J13.161 do not support this contention, nor do the Defendants at A17 answer the question posed at G23, G24 and G47, any more than Evans did at trial.

6. Turning to what is said at A19, there is no meaningful distinction between an allegation that Irving associates with violent extremists and the admitted libel "which the Defendants did not attempt to justify" (A19) that Irving "agreed to participate in a conference at which representatives of terrorist organisations were due to speak . . ." (J2.15 (1) (c)). The first is a conclusion which follows inevitably from the second.

7. Continuing with this theme, A 74 is wrong and G36 to G40 are right. Cp. an allegation that (1) 'X is an extremist. He believes in an united, Gaelic speaking, Catholic Ireland, rid of British influence' and (2) 'X agreed to share a platform with spokesmen for the Provisional IRA'. It is submitted that even if X is a Protestant and an Unionist to whom the imputed views are anathema, (1) however false would not on that account be defamatory for the reasons given by Street J. in Slatyer v. Daily Telegraph [1907] 7 NSWSR 488 at 498 and cited at G37, whereas (2) plainly would be, because of the implied condonation of terrorism. To prove only that a man holds unpopular views is no justification of an allegation that he is willing to associate with those prepared to use violence in the furtherance of such views.

8. A15 disregards not only the obvious point that, human nature being what it is, a witness such as Van Pelt who is paid £109,244.24 to give evidence is unlikely to remain uninfluenced by the payment, but also passes quickly over Gray J's own expression of surprise on 5th May 2000 at learning of the sum (£92,557.94) paid to Funke, who had given evidence for only half a day or thereabouts. On 15th April 2000 Funke gave an interview to Neues Deutschland,the newspaper of the former East German ruling party, from which his bias is apparent.

9. The Claimant gratefully accepts and adopts the view expressed at A15 that the work of the Defendants' experts " . . . was the principal foundation of the Defendants' case . . . and turned out to be the principal foundation of the judge's findings," and relies strongly upon it in support of the argument put at G13 to G16, which is at the heart of the Claimant's case on the proposed appeal.

10. The suggestions at A6 (2), A11 and A12 are in large measure inconsistent with and refuted by A15 itself, alternatively they are, even on the Defendants' own case, of much slighter importance than the validity or otherwise of the Defendants' expert evidence, which is manifestly open to challenge on appeal for the reasons stated at G13 to G16.

11. The second sentence of A7 is indisputably correct (see R2 above), and is also strongly adopted by the Claimant in support of G13 to G16.

12. Contrary to what is said at e.g. A11, A41 (2), A42 and A58, slight weight should be attached to limited concessions wrung from but quickly retracted by a litigant in person in the course of sustained and ferocious cross-examination, while the witness (aged 62) was suffering from the fatigue and stress of a thirty-two day trial, during which he was subjected to daily media vilification, and in which the opposing parties were represented by leading and junior counsel, two well-known firms of solicitors, and four highly paid experts.

13. Without wishing to labour a point already made at length at G13 to G16, it follows from R9 that whether Gray J was right to find for the Defendants depends principally on an assessment of the documentary and scientific evidence taken as a whole, not on his view of Irving as a witness, still less on any lay evidence led by the Defendants, since by the Defendants' deliberate choice there was none. As the Second Defendant (Lipstadt) herself wrote in the Jerusalem Post of 29th May 2000 [in fact June 5, 2000]: "We didn't call survivors, because first of all we didn't want to subject them to cross-examination by this guy. He would have destroyed them." All the "eye-witnesses" to whose testimony Gray J frequently refers in his judgment are persons long since dead, who gave evidence of debatable quality before war crimes tribunals of varying objectivity in the first half of the last century, not before Gray J at the trial of this action.

14. The suggestion at A15 that the expert evidence was of high quality merely begs the main question on the proposed appeal, which cannot properly be answered by outline submissions at the application for permission stage. A18 (to take but one example) strikingly fails to give any satisfactory reason why the evidence of a professor of cultural history is of the least value in determining questions which obviously require a very high degree of expertise in the exact science of chemistry, which Van Pelt neither has, nor claimed to possess, just as he has no special skill as an interpreter of photographs, or of the physical testimony of chemically contaminated ruins, let alone as a gas chamber or crematorium engineer.

15. As to the alleged "absurdity" of Irving's criticisms of Evans, see for example Evans's intemperate comments reported in The Times Diary of 16th May 2000, despite Gray J's generally favourable assessment of Irving as an historian at J13.7:--

"Cambridge University is bracing itself for an almighty thunderclap. David Irving, the anti-Semite historian, has been invited - against the wishes of almost every Fenland dweller - to take part in a Union Society debate next term. The chorus of disapproval, which is gaining steam daily, is being led by Richard Evans, the don who testified against the historian at his recent trial. 'The Union is inviting him to speak in the knowledge he is a neo-Fascist politician,' he tells me. 'I would not be willing to debate with him since I am not a politician and he is not a historian.'"

16. A20 overlooks the logical point that, while Evans was being paid £70,181 to find "converging" mistakes in Irving's works, which tended to understate Hitler's direct personal responsibility for the mass murder of Jews, no-one was being paid to look for "diverging" mistakes in Irving's work which overstated Hitler's as opposed to Himmler's or Heydrich's or Goebbels's responsibility.

17. The Claimant cannot possibly reply in detail to A20 to A73 within the constraints imposed by Sedley LJ's order of 6th September 2000, but ventures the following brief observations.

18. The Defendants' case is succinctly and accurately summarized at A7, viz. "that Irving was neither objective nor fair-minded, but had deliberately falsified the evidence available to him," and (to the like effect) in the first sentence of A20, with which the Claimant wholly agrees as a statement of the issues.

19. In order to succeed, Irving did not have to refute the orthodox historical consensus. Rather the Defendants (the burden on a plea of justification being squarely upon them) had to prove that Irving did not reach his alternative "revisionist" position after an objective and fair-minded analysis of the data available to him at the time. As Gray J accepted (J4.10), since the Defendants' pleas of justification is tantamount to a charge of fraud against Irving, an enhanced burden of proof lay upon them.

20. If rigorous and dispassionate examination of, for example, the alleged "'convergence' of evidence . . . that hundreds of thousands of Jews were systematically gassed to death at Auschwitz" (A53) casts any reasonable doubt on the orthodox historical consensus, then the Defendants have wholly failed to make out their case. So, by way of example, the long dead "eyewitnesses" did show impressive unanimity in describing the manholes in the roof through which the Zyklon-B crystals were poured into the gas chamber at Crematorium II. The roof slab survives. The physical evidence of the roof slab (photographs of which were shown to the Court) suggests that the holes do not exist. It is submitted that the orthodox historical consensus on this issue is at the least open to serious doubt.

21. Likewise if a proper analysis of the Bartz telex and the Schlegelberger Memorandum casts serious doubts on the orthodox consensus regarding Hitler's as opposed to Goebbels's responsibility for Kristallnacht, and Hitler's as opposed to Himmler's responsibility for the planning of the Final Solution, then no defamatory meaning of the words complained of is justified by proof that Irving has questioned matters which remain in reasonable contention between fair-minded historians.

22. Analysis of the questions raised by R20 and R21 must of necessity raise "issues . . . of the greatest importance for the interpretation of the political and military history of the twentieth century" as is (it is submitted, very fairly) stated at G10, to which the second sentence of A10 gives a transparently disingenuous "answer " so far as questions of historical interest are concerned. The Claimant has never contended that the proposed appeal raises novel points of law, so it is no refutation of his case to say (as the Defendants do at A10) that it does not.

23. As to A77, Irving told those who chanted neo-Nazi slogans that they were bringing shame upon Germany. The Defendants' summary of the video evidence is partial and prejudicial. It needs (quite literally) to be seen as a whole if its weight is to be assessed properly.


10th October 2000



Nigel Adams & Co.
Bishopsgate House
5/7 Folgate Street
E1 6BX
Tel. 020 7 392 2216
Fax 020 7 392 2213
DX 131418 Bishopsgate
Solicitors for the Claimant
html version © Focal Point 2000   write to David Irving