I, JAMES LEWIS LIBSON of 21 Southampton
Row, London WC1B 5HS MAKE OATH AND SAY as
follows-1. I am a solicitor in the firm of Mishcon de
Reya and have the conduct of this matter on
behalf of the Second Defendant ("Professor
Lipstadt"). The contents of this affidavit
are within my own knowledge save where appears
otherwise from the context.
2. I swear this affidavit in order to bring
to the Court's attention the Plaintiffs ("Mr
Irving") breach of his implied undertaking
in relation to discovery given by Professor
Lipstadt.
First Breach
3. Mr Irving's first breach took place on
19th March 1998. This was drawn to the Court's
attention in Anthony Julius' First Affidavit of
13th May 1998. To summarise, Mr Irving attended
my firm's office on 18th March 1998 to inspect
Professor Lipstadt's documents. He posted two of
the documents
on his website the same day. There is now
produced and shown to me in an exhibit marked
"JLL 1". Pages 1 and 2 are copies of Mr Irving's
website pages showing the two
documents [not
currently posted]. On 19th March 1998
my firm wrote to him asking him to remove the
offending items (page 2 of exhibit JLL 1) and to
give an undertaking that he would not post any
of the documents obtained on discovery to his
website or to any other website under his
control or use the documents in any way for any
purpose other than the litigation. Whilst he
took the document off the website, he refused to
give the undertaking sought (page 4 of JLL
1).
Second Breach
4. My firm had cause to write
to Mr Irving again on 27th March 1998 regarding
a further breach of his implied undertaking
(page 5 of JLL 1). Mr Irving had used another
document
obtained on discovery to make a threat of libel
proceedings against the Board
of Deputies. He had deliberately backdated
his letter[1] to
18th March 1998 (page 6 of JLL 1) to give the
appearance of it being sent before he had been
warned for the first time of his contempt. Page
7 of "JLL 1" is a copy of the envelope in which
the letter was sent showing it was posted on
24th March 1998. Further correspondence ensued
regarding this matter, in particular Mr Irving's
failure to give the undertaking sought in our
letter of 27th March 1998 (pages 7-10 of JLL1).
In our letter to Mr Irving on 22nd April 1998
(page 11 of JLL 1) we advised Mr Irving that we
would raise his breach of his implied
undertaking with the Court at the appropriate
time.
5. On 20th January 1999, I discovered, on
reading Mr Irving's website, a new addition
headed "The Legal
Battle". The pages I downloaded are at pages
12-18 of JLL1. I was very concerned for the
following reasons:
(1) On page 13 of JLL1, Mr Irving
refers to document
500 in Professor Lipstadt's List of
Documents and confirms it will be uploaded to
the website as soon as it enters the public
domain. However, it also states that a fully
hyperlinked version of the document is
currently accessible through the Index, only
to those equipped with the password(s) for
"privileged consultation" purposes. My
concern is that all those with passwords are
not people whose advice is being sought by Mr
Irving for any purpose reasonably necessary
for the proper conduct of his action.(2) I refer to page 17 of JLL1 where Mr
Irving states he is taking on extra staff to
build a secret (i.e. offline) website on
which all the documents for both sides will
be posted and hyperlinked in advance and each
uploaded for public viewing online as soon as
it becomes legally possible. These staff
would have access to Professor Lipstadt's
discovery in order to prepare the web site
for the sole purpose of, as Mr Irving himself
says, to show that Professor Lipstadt has
acted in a reprehensible manner as the
"gold-tipped
spearhead of the enemies of the truth"
(page 16 JLL1).
(3) On pages 16-17 of JLL1, Mr Irving
refers to documents in Professor Lipstadt's
discovery and identified by whom they were
prepared and what sort of documents they are.
By doing this, he is using information
derived from Professor Lipstadt's discovery
to encourage people to support him against
Professor Lipstadt.
6. My firm immediately wrote to Mr Irving on
20th January 1999 (page 19 of JLL1). We advised
him of his implied undertaking and explained
that he may only use documents for the purposes
of conducting his own case and not for any
collateral or ulterior purpose. We highlighted
his reference to taking on extra staff to build
his secret offline website which, I submit
demonstrates a clear intention to break his
undertaking.
7. Mr Irving responded to my firm's letter
(page 20 of JLL1). He confirmed he has reviewed
the legal position and is aware of the scope of
the implied undertaking. He also confirmed that
he does not intend to release any of Professor
Lipstadt's documents into the public domain or
use them for any collateral purpose until they
are read in open Court or referred to at the
trial of this action.
8. My firm immediately replied to address the
points raised in his letter (page 21 of JLL1).
We advised Mr Irving that in his own words, he
was disclosing Professor Lipstadt's documents on
his website because she had behaved in a
reprehensible manner. Notwithstanding that
documents are on an offsite website at his
premises, they are clearly accessible to a
number of individuals with a password. Mr Irving
responded to our letter the same day (page 22 of
JLL1). He advised us again of the case law in
respect of documents which are read out in open
Court or referred to at trial.
However, this is not the point we
are making. On the basis of the information on
Mr Irving's website (pages 12-18 of JLL 1), I
have strong grounds to believe that Mr Irving is
allowing various people access to Professor
Lipstadt's discovery for ulterior purposes not
reasonably necessary for the proper conduct of
his action. As can be seen from the tone of his
website, Mr Irving is conducting an aggressive
campaign against Professor Lipstadt by referring
to her discovery. I am informed and believe that
many of the people who read Mr Irving's website
are violent rightwing extremists[2]
and by misusing documents in this way, Mr Irving
is putting Professor Lipstadt in danger.
9. Accordingly, I wish to draw the latest of
Mr Irving's breaches to the Court's attention
and respectfully ask the Court to advise Mr
Irving, as a litigant in person, in clear terms
on his obligations in respect of discovery.
Sworn this [21st] day of January
1999
Before me,
A SOLICITOR
