April 21, 2000

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The defeat of the denier

Danuta Kean reports on how Penguin prepared for its libel battle against David Irving

As Mr Justice Gray read out his judgment in the libel trial brought by David Irving against Penguin looks and author Deborah Lipstadt, Helena Peacocks, Penguin head of legal, looked across at the historian. He was sitting impassively, "though his colour was changing". Listening to the judge condemning Irving as a Holocaust denier, racist and anti-Semite, she felt elated. "It was a very happy day." The judgment marked the end of an almost five-year battle that had begun in November 1995, when Irving had written to the publisher demanding the withdrawal of Professor Lipstadt's book Denying the Holocaust, which he claimed libelled him.

The letter had come "completely out of the blue", Ms Peacock says. Mr Irving is mentioned on only six of the 300-plus pages in Professor Lipstadt's book. The author, a US-based academic, responded, but it soon became apparent that nothing would satisfy Mr Irving; "he was obviously going to issue proceedings against us".

In September 1996 a writ was served against Penguin; three months later one was served on the author. The publisher's defence was overseen by Penguin legal director Cecily Engle and Ms Peacock. Kevin Bays and Mark Bateman of solicitors Davenport Lyons had been instructed to act on Penguin's behalf, and a defence was put in. Nothing more happened for a year, leaving the two defendants hoping the case had been dropped.

Professor Lipstadt appointed her own lawyers, Anthony Julius and James Libson from UK law firm Mishcon de Reya. She had not realised that her publisher, the defender of Lady Chatterley and The Satanic Verses, would see the case through to the end. "I hope this case shows that Penguin does not run, Ms Peacock says. "There is no reason at all for us to turn our backs on our author."

Nor was Penguin's parent company Pearson prepared to turn its back, as all Penguin personnel involved, from m.d. Anthony Forbes Watson (left) down, will testify. Nick Schymyck from Pearson's insurance department sat in on case conferences, and at no point did he flinch at the mounting bill for the defences "Though Cecily and I sometimes winced on Pearson's behalf," Ms Peacock jokes.

A "war council" of the lawyers, Ms Engle, Ms Peacock and Mr Schymyck, along with George Cameron from insurer Commercial Union, was assembled, meeting at first every six months, then every three months, and finally almost daily.

Richard Rampton QC was appointed for the defendants. "It was felt that because of the enormous number of facts and the historical knowledge involved, there were very few QCs who would actually get into the detail in the way we needed in Richard Rampton was someone we were advised would relish it. "

The burden of proof

Mr Irving's claim rested on Professor Lipstadt's description of him as a Holocaust denier, as opposed to a revisionist historian . The distinction is important: revisionist historians challenge accepted interpretations of events, using conventional historiographic methods; Holocaust deniers are polemicists, twisting the evidence to justify their ideologies.

The nature of the claim meant the defence had to prove the historian had knowingly falsified evidence to suit his ideology, and that his research methods were flawed. As a result the defence needed to provide detailed evidence in a number of areas: Mr Irving's historiography; his claims about the gas chambers at Auschwitz; Hitler's knowledge of the Final Solution; Irving's central belief that the Holocaust was not a systematic programme to destroy the Jews; and his links to far right extremist groups.

A team of seven expert witnesses was assembled, though only five were called --Richard Evans, professor of modern history at Cambridge; Robert Jan Van Pelt, an expert on Auschwitz; Peter Longerich, an expert on Hitler's knowledge of the Holocaust; Christopher Browning, an expert on the shootings on the Eastern Front; and Hajo Funke, an expert on the extremist groups. Their research accounted for a substantial part of the £2m costs.

Professor Evans' evidence "was central to the case" -- With two research students, he spent two years examining every scrap of evidence cited by Mr Irving. He was shocked by what he found. Help for the defence also came from an unexpected source, David Irving. The pre-trial disclosure process brought to light disturbing video and diary evidence of his political and racial beliefs. His library provided proof that he had read and chosen to ignore evidence that contradicted his theory that the Holocaust did not happen.

"We were very confident once we saw the evidence, very confident indeed," Ms Peacock says. "We were advised by Richard Rampton that he had never been involved in a case where the evidence was so strong. He said that he was sure we would win." As the trial approached, Mr Irving appeared to lose nerve. He offered to settle twice. The first time was to Penguin on 11th September 1998. He wanted a full apology, withdrawal of the book and a donation of £500 to charity. But Professor Lipstadt remained in his sights, so Penguin rejected the offers.

But by 14th October 1999. he appeared less confident, and offered to settle with both parties in exchange for the donation alone. It was too late, Ms Peacock says: "We felt that this was a man who had brought a libel action in order to suppress the right of our author to write a book and her right to publish it. Had we settled, it would have been interpreted as victory for him ."

Trial without jury

The decision to try the case without a jury was agreed by both sides: explaining such a complex case to a jury would have extended the trial and taken costs to even more astronomical levels. Irving's decision to represent himself created some problems for the defence. A litigant in person invariably brings into court evidence that would not normally be allowed, and made it harder for the defence team to organise itself. He could also, by dint of his comprehensive knowledge of the issue, be daunting to witnesses.

For Ms Peacock the most memorable moment was the testimony of Robert Jan Van Pelt on the ovens of Auschwitz, made more moving by his own family's suffering at the hands of the Nazis [sic. This was not mentioned in court]. "He just carried the court along with him."

Much has been made of the trial's cost, which quickly passed estimates of £500,000 to £2m made at the outset of the case. But Penguin has no regrets. "It has cost a lot, but you don't count that as a loss when you have won such a fantastic victory." Ms Peacock says. As the defence team listened to Mr Justice Gray's damning indictment of David Irving, they were reminded that no price can be placed on principle and truth.

Penguin seeks to publish libel trial verdict

[If they do such conduct will go to aggravated damages in the event they lose the appeal]

Penguin is seeking permission to publish the judge's full verdict in the David Irving libel trial. It may also reissue the book at the centre of the case, Deborah Lipstadt's Denying the Holocaust, with a new chapter by the authors.

Granta is to publish a study of the case, The Holocaust on Trial, by Don Guttenplan, contributing editor of The Nation, Ms Lipstadt is writing an account of the trial, although Penguin has made no commitment to publish the work. [!! Her original book sold less than 2,000, largely "forced" sales to schools and libraries].

Penguin chief executive Anthony Forbes Watson said that demand for Denying the Holocaust had shown a "steady increase" during the trial. Whitaker BookTrack shows sales of nearly 400 copies so far in 2000, against 79 last year.

Penguin's solicitors, Davenport Lyons, confirmed that the publisher would attempt to claim costs against Mr Irving's financial backers to claw back some of the £2m it spent on the trial. It said that the attempt would be hindered if Mr Irving lodged an appeal against the verdict, as he is expected to do.

Channel 4 is to screen "The Holocaust on Trial" on 29th April. It will include a dramatisation of the case and interviews with Holocaust survivors.

Website fact: The stamina of the defence team was aided by a six million dollar fund provided by Stephen Spielberg, Edgar J Bronfman, and the American Jewish Committee, which enabled them to pay 21 lawyers and "experts"; the experts like Evans, Longerich were paid up to £125,000 each to testify as they did (while the defence's star legal team was paid considerably more). Nobody was paying for Mr Irving, who has been fighting this battle for three whole years. Nor did he pay his defence witnesses one cent or sous: they testified from conviction, not for reward. [Help!]