In the High Court of Justice                                               No. 257 of 2002

Mr Registrar Simmonds

BETWEEN

Applicant David John Cawdell Irving

and

Respondent Louise Mary Brittain

of Baker Tilly, Trustee in Bankruptcy of the Applicant’s Estate

TENTH WITNESS STATEMENT OF DAVID JOHN CAWDELL IRVING

I DAVID JOHN CAWDELL IRVING, historian, of David Irving, [of...] Windsor SL4 6QS, will say as follows: save where the contrary is expressly stated or manifestly implied, the facts and matters to which I depose herein are within my own knowledge.

  1. As stated in my Eighth and Ninth Witness Statements, on which I continue to rely, I am an historian and professional writer and historical researcher, and I have pursued these trades since 1961; these were my sole sources of earned income. I make this further statement in support of my application dated October 14, 2003.
  2. This statement is made in support of a claim for costs and damages arising from the Respondents’ wrongful seizure on or about May 23, 2002 of the tools of my trade and my archives and my library and the subsequent loss of the domestic possessions and properties of myself, my daughter, my partner, and of the company Parforce UK Ltd.

The Lists Exhibited Herein

  1. During 1998 and 1999 in the process of systematically preparing my Discovery for the action DJC Irving vs. Penguin Books & Lipstadt, I had occasion to rehouse in numbered white Viking-brand archive boxes, each in turn containing three smaller white Viking-brand sub-boxes, the most important archival contents of my apartment, No. 81 Duke Street, London W1 (“the premises”). (I did not however list the title of every book.)
  2. The following detailed lists resulted, and since I submit that “DJCI.1” to “DJCI.5”  inclusive provide a proper survey of the contents of the premises at the moment of their seizure (apart from those archives in storage in Illinois) I exhibit them herein. I have annotated the list “DJCI.1” to indicate where I had shipped an item to storage in Illinois in about 2001.
  3. For convenience I list here the exhibits which establish what items were on the premises, and what items were returned to my custody in October 2007.

Exhibit “DJCI.1”: Numbered Series of Archive Boxes containing the Applicant’s Research Papers, Manuscripts, Correspondence, Articles, as listed at No. 81 Duke Street in 1998-1999;

Exhibit “DJCI.2”: Schedule of contents of [missing] box 51, collected documents on the “Judenfrage”;

Exhibit “DJCI.3”: List of more large White Archive Boxes of documents collected by Applicant for the Joseph Goebbels biography; litigation files, and corres&endash;pondence on other projects; almost entirely missing;

Exhibit “DJCI.4”: List of Personal Video and Audiotapes created and owned by the Applicant as of late 1999; all missing;

Exhibit “DJCI.5”: Last known locations of the Applicant’s Possessions within the Duke Street premises; an incomplete list, originally compiled in November 2005;

Exhibit “DJCI.6”: Inventory of boxes returned to Applicant on October 16, 2007;

Exhibit “DJCI.7”: A microfilm printer reader equivalent to the Kodak Recordak microfilm printer reader wrongfully taken by the Respondents in May 2002.

Exhibit “DJCI.8”: Photograph of the returned archives now housed in a bare room at the Applicant’s current home. [see below]

 

The Seizure of the Properties

  1. On or about May 23, 2002 (our appeal against the bankruptcy petition heard on the previous day having unexpectedly failed), the Respondents and their agents seized all my possessions housed on the premises, and the premises were later that same day repossessed by the mortgage bank and the locks were changed. The seizures were mainly confined to my study. I was lecturing in Oregon, unable immediately to return.
  2. My then solicitors Amhurst, Brown, Colombotti had as a precaution obtained from the mortgage bank written permission for me to return under supervision to salvage all our residual possessions not already physically removed by the Respondents and their agents.
  3. Hearing of this, the Respondents tortiously or negligently informed the mortgage bank by fax, as they informed us, that all such residual possessions were a part of my assets, and hence part of the seized estate, and they prohibited our being allowed further access to the premises. I shall produce a copy of this fax at the trial of this action.
  4. When I inquired about these residual possessions, the Respondents informed us that everything had been removed to storage. This was evidently untrue. The Respondents subsequently abandoned their claim to these residual possessions without notifying us and allowed their unlawful disposal or destruction by the Mortgagee of the Premises. We never saw these residual possessions again. I set a value of at least half a million pounds on these residual possessions including the unpublished manuscripts, research materials, and domestic goods. They were the product of forty years’ work, and thirty five years residence on the premises.
  5. The Respondent Brittain undertook in writing to give us two weeks’ notice of any sale of the seized possessions; this would have enabled friends to make a proper offer to recover them. The Respondent Brittain broke this undertaking, and sold the goods for paltry sums to third parties.

History of this Claim

  1. Having taken counsel’s advice on the legality of the Respondents’ actions, on October 15, 2003 I initiated proceedings against them claiming the return of my wrongfully seized possessions, and damages to be assessed at a later date to be awarded against the Respondent for wrongfully depriving and continuing to deprive the Applicant of these possessions, which are essential to the conduct of his calling as an historian and writer; I also propose to seek leave to claim aggravated damages (on the premise that the Respondents were aware that they were wrongfully seizing these possessions, having inter alia been parties in the action Haig vs. Aitken), and having received legal advice from their own solicitors to this effect, proof of which I shall produce at the trial of this action.
  2. It became evident from documents exhibited in Lipstadt vs. Baker Tilly that in flagrant violation of the ruling in Haig vs. Aitken the Respondents Baker Tilly were attempting to sell or otherwise dispose of my archives, correspondence, library, personal possessions, and other items.
  3. Upon an Order made at my application by Mr Registrar Simmonds the further disposal of my possessions was frozen.
  4. On or about October 21, 2005 the Respondents made what they claimed were the residual possessions available to me for inspection at an office in Old Bailey. My solicitor failed to attend, so I conducted a two-hour inspection alone.
  5. In about November 2005, shortly before my arrest and imprisonment by Austrian authorities, I compiled from memory a necessarily incomplete list of all my possessions known to be on the premises as of May 23, 2002. I append this list as Exhibit “DJCI.5”. I noted in column 4 of this List the “Status recorded on inspection Oct 2005” relying on brief notes. In Column 5, I have noted the current status, based on my inspection just completed.
  6. For fourteen months from November 11, 2005 until December 21, 2006 I was held as a political prisoner in solitary confinement in Austria. In reply to my letters from prison, the Respondents threatened explicitly to destroy all my remaining possessions; I reminded them of the Order made by this Honourable Court, but they left me in the belief that they had carried out their threat.
  7. Upon my release and upon my further application Mr Registrar Simmonds made further Orders under which the Respondents were to provide to me for inspection at an agreed location all items remaining in their custody for the purpose of agreeing between parties what items were missing. I have now completed this inspection.

The Trustees return the Surviving Possessions

  1. By agreement between the parties and pursuant to the above Order the Respondents delivered up to my safekeeping on the morning of October 16, 2007 a total of 161 brown archive boxes numbered 1 to 161, and of eleven brown archive boxes numbered 400 to 410. They have been housed since then, as shown in the photograph exhibited to this statement as “Exhibit DJCI.8”, in a bare room at my address set aside for the purpose.
  2. Between October 16, 2007 and November 8, 2007 I opened every box, and listed the contents.
  3. I have merely estimated book totals, microfilm totals, and totals of duplicated VHS videotapes from our former commercial sales stock (as opposed to the personal audio- and videotapes referred to in para. ... below) as, for the sake of simplicity, I do not intend to contend that any of these items are missing.
  4. Nothing has been removed from the room in which these items have been placed in  my safekeeping. Where I have removed certain items from their boxes and placed them on a shelf in the room, I have noted this on the list exhibited herein. I placed items that were clearly trash into an open trash box which is also left in the room.

Summary overview of the Material Losses from the premises at Duke Street

24.  from the main study, virtually my entire tools of trade: pens, pencils, pencil sharpeners, ink, ink-cartridges, paper, packets of photo-printing paper (A4, A2, and A1 size), ink pads, guillotine, envelopes, packaging materials, office lamps and lamp transformers;  most expensive is the costly microfilm printer-reader, without which is it impossible to access the million pages or more of war records contained in my microfilm archive. From its file cabinets: research materials, often made exclusively available to me and not to others (like the post-1941 pages of the private diary of Sir John Martin, Churchill’s private secretary, which he himself entrusted to me) and my research files on the two projects on which I am currently working, biographies of Heinrich Himmler and Churchill; all chairs and the partner’s desk and the computer-desk in master bedroom, and the only table. (The Respondents and their agents took the only desks and the only table of a writer!)

25.  The Respondents also removed all records of interviews, reel-to-reel tapes and tape cassettes of telephone conversations, broadcasts, and interviews; and the four-track tape player (not the Uher Report 4000, which has been returned) specifically needed to replay these obsolete tapes. The loss of the family tapes is particularly painful. I have listed all these tapes as Exhibit “DJCI.1”, a list made in 1999 during Discovery for the Lipstadt Trial.

26.  from the wall cupboards in the kitchen vestibule and butler’s pantry: German and English historical source books, including complete sets of the US Eighth Air Force official history, many British Official History volumes, and a complete set of the multi-volume printed edition of the German High Command war diary (which is no longer available); also six different archaic German-English dictionaries expensively purchased as linquistic evidence for the Lipstadt trial.

27.  from the premises’ main corridor: approximately forty white Viking brand-archive boxes of the numbered series listed in Exhibit “DJCI.1”, including the several important series of documents I had collected in forty years as an historian from archives visited around the world, which I am no longer permitted to visit, and Box 51, containing my exclusive collection of documents on Hitler and the Holocaust, all of which are essential for my ongoing work on the biography of Heinrich Himmler, and would be priceless if they fell into the hands of a rival (I append to this statement as Exhibit “DJCI.2” a separate list of the contents of this missing box, compiled by me during the Lipstadt action discovery procedure as far as Dec 31, 1942, “Documents on the Holocaust”); only full disclosure by the Respondents will reveal the fate of Box 51 and the other boxes.

28.  from the upper and lower cupboards in the kitchen vestibule: approximately thirty-five cubic feet of white Viking brand-archive boxes (about twenty boxes) of the numbered series listed in Exhibit “DJCI.1”, containing documents, audio tapes, video tapes, and photos. Particularly unfortunate is the loss of the eighty volumes of mimeographed US National Archives Guides to Captured German Records microfilmed by the AHA at Alexandria, Virginia, of which I had a complete set, and which are an essential tool, and which are irreplaceable.

29.  from the open wall shelves, lower shelves only, in servants’ WC area (the upper shelves contained first editions of my books which were salvaged at the time): approximately twenty Ryman-brand string-tied transfer-cases with documents, correspondence, photos, the unedited manuscript of my autobiographical memoirs.

30.  domestic and family property to a replacement value of around two hundred thousand pounds, including all domestic electrical equipment, all my clothes and shoes, all the soft furnishings, all the white goods, the entire contents of the kitchen and utility room, the four-piece drawing room suite, all the beds and bed linen, etcetera.

Summary Overview of Further (Consequential) Damage

31.                    By depriving me of the use of book manuscripts already drafted, for five years, the Respondents damaged my reputation, eventual sales prospects in a declining market, and income.

32.                    To give one example, the five-year loss of my CSDIC manuscript (“Overheard”) has made it unsaleable, as publishers which I have now approached have drawn my attention to the fact that my exclusive scoop has been overtaken by other authors who, no doubt alerted by my books to the existence of this trove, have published two books from the same materials.

33.                    While I have spent ten years waiting to complete my Himmler biography in the absence of any substantial work on this evil man, a minor German historian Peter Longerich has announced that he is about to publish his; since he was one of the experts appointed by the Respondents in the DJC Irving vs. Lipstadt action, I am entitled to assume that he has benefitted substantially from insight into my archives. There are no prizes for runners-up, other than starkly reduced sales and income.

34.                    The loss of the manuscript of “Memoirs” begun in 1949  (it was in a Ryman transfer case), means the loss of irreplaceable materials.

35.                    I need not underline the loss of the transcripts and audiotape recordings of my interviews with historic figures, now all long dead, to emphasize the value of what has been destroyed or disposed of to others.

36.                    Nor can I or would I put a price on the loss of such personal records as the audiotapes of the birth of my first daughter Josephine, who later tragically killed herself.

37.                    Of course, where rival historians have thus obtained illicit access to my exclusive research products, which they would never have obtained directly or otherwise, this has resulted in a further, inverse, loss to myself.

38.                    The Respondents’ offer of sale of my correspondence files to “enemy” agencies -- evidenced by documents disclosed in the Lipstadt vs. Baker Tilly action -- will threaten incalculable damage to myself and my friends and supporters, the scale of which I cannot quantify until the Respondents give full disclosure of their relevant files.

Statement Of Truth

39.                    I believe that the facts stated in this Witness Statement are true.

Signed:

                        David John Cawdell Irving           

Dated: Wednesday, November 14, 2007

Served this fourteenth day of November 2007 by David Irving of ... Windsor SL4 6QS acting in person.