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SEVENTH STATEMENT OF DAVID JOHN CAWDELL IRVING I, DAVID JOHN CAWDELL IRVING, author, of [...] London W1J 7SE, the Claimant herein, will say as follows:- 1. I make this statement in support of my application dated December 23, 2002 for an Order that the interim costs order of Mr Justice Gray herein dated May 5, 2000 be discharged or stayed. In particular, this statement gives some relevant additional factual background to the First Defendant's conduct and that of the trustee in my bankruptcy, which followed from the above Order. 2. In reliance on a statutory demand based on the above Order the First Defendant presented and in January 2002 served on me a bankruptcy petition claiming £150,000. On March 4, 2002 Deputy Registrar Derrett granted the First Defendant's petition, and made a bankruptcy Order against me. Louise Brittain of Baker Tilly was appointed as my Trustee in Bankruptcy. Solicitors DLA advise the Trustee and act on the Trustee's behalf. 3. I appealed against the Deputy Registrar's Order, and the appeal was listed to be heard by Mr Justice Peter Smith on May 21, 2002. On April 20, I left the UK on a lengthy programme of fixtures in the USA, ending in Cincinnati on September 3. On April 23, the Bradford & Bingley Building Society ("B&B"), the mortgagees of the flat in Duke Street where I had lived and worked for thirty-three years, served notice that they would apply to repossess the flat. The eviction notice was based on a 1992 order, relating to past arrears of installments due under the mortgage (but a new schedule of payments had since then been arranged and adhered to), but primarily, as they stated to my solicitors Amhurst, Brown, Colombotti on May 13, on the fact that a petition in Bankruptcy had been served by the First Defendant, which under the terms of the mortgage permitted B&B to move to repossess. By the first week of May -- I was now on the west coast of the USA -- I had been notified that the eviction was to take place on May 23. 4. Its execution would obviously depend on the outcome of the appeal set down to be heard on May 21. On or about May 8 I instructed my solicitors, and put them in funds, to apply for a stay of the eviction. This was not done. 5. I had made the Trustee (who was advised at all times by DLA) aware of the eviction date, and she made arrangements for her representatives to attend at the flat and remove those items which she regarded as being vested in her as Trustee. With the failure of the appeal on May 21 only one clear day remained to remove my personal possessions -- collected over thirty-three years living and writing at the same address. I was still in Oregon. The home's occupants were my eight year old daughter and her sick mother. My solicitors, Messrs Amhurst Brown Colombotti, informed me that they had reached an agreement (the Agreement) with solicitors Hammond Suddards (acting for B&B) that my family and I might have access to the flat for one day after formal possession was taken and the locks were changed, in order to remove all the remaining items. These were substantial and often irreplaceable. I tried repeatedly after that date, and particularly on my return to the UK, to obtain access, but Amhurst, Brown, Colombotti now informed me that the Agreement had been withdrawn by Hammond Suddards upon representations made to them by the Trustee. 6. The property has remained empty since the locks were changed, and is still empty and unoccupied at this date. I was informed by Hammond Suddards, when I tried to renegotiate access independently, that all the items had been "disposed of" during the summer. This was confirmed by the building's porter who had seen property being carried out. I suspect however that scaffolders working for the last six months on the building will have extensively looted the more valuable items, as none of the large back windows could be secured. 7. Upon my return to the UK, Amhurst Brown Colombotti showed me correspondence which confirms that on May 22 DLA informed them in writing that they considered that "all" my property was vested in the Trustee, that "our client [the Trustee] has a claim to all of the items. It follows that there are no items which Mr. Irving will be able to remove" and that there was therefore no purpose in our going back to the flat. On May 23 Hammond Suddards informed Amhurst Brown Colombotti in writing that "we have been advised by the trustee that they will allow no items to be removed from the property. As such our client [B&B] is unable to allow your client access, supervised or otherwise." The remaining possessions accordingly remained on the premises, in the Trustee's care, until they were looted or disposed of without my consent. No permission was given by myself or my agents for this latter act. 8. In short the Trustee took what she legally could, and a lot that she was not legally entitled to take; and then through, at best, negligence, brought about the total loss of the rest. The items which must be considered irretrievably lost in this remarkable sequence of events are both large and small: including the entire furniture of the entrance hall, drawing room and three bed-rooms, the entire three-room kitchen and laundry installations and equipment and utensils, most of our clothing, and many of my family and personal documents, original unpublished manuscripts, research archives, legal files and a historical index of some 20,000 --30,000 cards that took thirty-five years to build. B&B have claimed that my family had subsequently (i.e. at some date after May 24), authorized the disposal of these items. This is not only improbable but quite untrue. There was in fact no further contact whatsoever, and they made no attempt to contact us. 9. I have heard from the Trustee and read in The Sunday Times that B&B has sold the property since then for the sum of £925,000. I have asked to be provided with a completion statement. 10. As stated above, my appeal against the Deputy Registrar's order, heard on May 21, was unsuccessful. Counsel informed me on the evening of May 21 of the witness statement signed by Mr Bays, but it has taken until now to raise the funds needed to perfect transcripts of the two hearings involved and instruct solicitors for this application, my bank account having been seized by the Trustee. I was advised that since this is an application in the context of defamation proceedings, Legal Aid is not applicable.
11. The Trustee has invited creditors to submit proofs of debt in the bankruptcy. I have not been provided with copies of any of these proofs, but I understand from correspondence with Baker Tilly and/or DLA that the First Defendant has submitted a proof for approximately £2.6 million. Attached to this statement marked "DJCI 8" is a small bundle of correspondence passing between me and the Trustee concerning the amount of the First Defendant's proof. In particular, I have grave reservations concerning the extent to which the proof can properly be admitted in circumstances where the First Defendant has a liquidated claim (based on the Order which is now being challenged) for a maximum of £150,000 plus interest, and only a contingent entitlement to additional costs which have yet to be assessed or agreed. 12. It appears from the correspondence in DJCI 8 that the First Defendants have submitted a proof for a total of £2,633,498, and that the Trustee was not minded to await full and formal taxation of the bill of costs before admitting the proof. This is despite the fact that Mr Justice Gray, when hearing the application for an interim payment on account of costs, found that the costs claimed were "…too high by a fairly large margin…". It is my understanding that no assessment of these additional costs has taken place, and that the proof has not been formally admitted. 13. I would refer to the statement dated December 23, 2002 from my solicitor, Mr Peter Laskey of Amhurst Brown Colombotti, which explains in more detail the position concerning the failure of the First Defendant to apply for its costs to be assessed. 14. I should also comment on the time which it has taken me to make this application, after receipt of the Statement of Mr Bays on May 21, 2002. My solicitors Amhurst Brown Colombotti very reasonably in the circumstances asked for payment of a certain amount to cover the anticipated costs of the application and hearing, the amounts involved being of the order of £28,000 to cover amounts still due, and £10,000 to cover the future work involved, counsel's fees and disbursements. The Trustee having seized my only London bank account and all financial and business files and all my US funds having been swallowed by the costs of moving the family to a new address and payment of the deposit and other amounts required by the new landlords, I had to await (a) the arrival of income from cash book sales at my US fixtures (sales -- not profits -- might vary from $500 to $3,000 per fixture, and (b) my setting up a permanent base from which to launch a postal appeal. I arrived at that base at the end of May, and during June mailed out two appeals to my friends around the world, who had already enabled my family to survive during the three year legal battle. Having considered the issue with my Counsel, Adrian Davies, I decided that I should (a) commission a full transcript of that hearing, and (b) proceed to the application. 15. As to the former task, this has proved much more time consuming than we had anticipated. The original transcript prepared by Smith Bernal Word-wave from the tape of the hearing contained a very significant number of gaps, as the transcribers were unable to hear what counsel or the learned Judge was saying. It was therefore necessary to obtain the Judge's permission for Mr Davies to have access to and listen to the tape. This was done, and Mr Davies listened to the tape, and marked up the transcript. Smith Bernal Wordwave then produced a revised transcript (which still contains many "inaudible" entries, but is much improved from the first version), and it is that revised version which is now relied upon. 16. In the first fundraising appeal I personally signed and sent out about 3,000 letters. Postage costs were over $2,969 and stationery costs over $1,057. Hired help cost around $1,000. In the second appeal, during September (since the first had raised the fund to only about $7,000), addressed to just thirty of the most generous supporters, I also sent out free gift copies of the second volume of my biography, "Churchill's War", vol. ii: "Triumph in Adver-sity". These appeals brought the level of funds (which were constantly being drawn upon) to about $10,000. Two unexpected complications were (a) that I had had to open a new US bank account and this has become much more difficult for aliens under the USA Patriot Act introduced in 2001; and (b) that since many of the contributors wished to use their credit cards, I had had to set up a Merchant Services account in the USA. The same "alien" problems arose, and the company which finally accepted the account in August did so on the basis that all funds would be held in reserve, not for 48 hours as advertised, but for 48 days - a term which has somehow extended to six months. (They are still holding around $20,000 in reserve, and not releasing it). The fund however reached a sufficient level in November to enable me to instruct and put Amhurst Brown Colombotti in funds, on which basis they declared themselves willing to proceed. I respectfully submit that since this is an entirely document-based application, the delay ought to make no difference. 17. I confirm that the contents of this statement are true.
David Irving Dated Friday, December 20, 2002
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