David Irving's barrister privately reports to him on the outcome of the appeal hearing before Mr Justice Peter Smith on May 21, 2002 (extracts):
When I opened the appeal, the judge (who had evidently pre-read the papers very thoroughly) agreed that the Deputy Registrar had fallen into two errors of law (holding it against us that we had not applied to set aside the statutory demand, and refusing even to hear submissions on the effect of Dawodu v. American Express Bank [2001] B.P.I.R. 983). He also agreed that he had a discretion to reconsider the matter even though we had failed before Gray J. on the same evidence. Further argument caused him to enquire why Penguin had been unwilling to put in further evidence on the maintenance/breach of the indemnity principle issue. He then asked Penguin's counsel why Penguin did not "bell this particular cat", and invited them to make a witness statement dealing with the question of maintenance in terms. This suggestion caused the huge Penguin team evident consternation, but Kevin Bays eventually did the necessary, and I attach his witness statement as a rich text document. Peter Smith J. thought Bays's statement sufficient to allay any concerns that he might otherwise have had. It might however be arguable that the Court ought to go behind Bays's statement, and enquire whether in truth his firm was not always looking to Penguin's insurers for payment, especially as Bays (very reluctantly) admitted that in fact the insurers did pay. If so, that would give us a basis for an appeal [...]). For completeness, I should add that Peter Smith J. did not think Penguin's refusal to accept payment by instalments and security for the debt was outside the range of responses available to a reasonable creditor, which is the test. He was particularly influenced by the lack of evidence as to your earning potential, and the contractual relationship between yourself and Parforce. Peter Smith J. gave us a courteous hearing, and did not appear to share Gray J's or Buxton LJ's evident ideological aversion to you. I believe that we had a fair hearing of our complaints, and fairer treatment than you have had from any of the various tribunals that have adjudicated upon your case. [...] Peter and I will await your further instructions in this
regard. |
AS you will by now have heard from Peter [Laskey,
solicitor], we did not prevail this morning before Mr
Justice Peter Smith.