Defendants'
submissions (2nd version) in accordance with the
directions of Sedley LJ of 6.9.00 Introduction 1. The grounds on which the Claimant ('Irving')
seeks permission to appeal ('the Grounds') are set
out in his skeleton argument. These submissions
therefore address the Grounds (references to
paragraphs in the skeleton argument are given as
G[paragraph number]). 2. Although in the course of these submissions,
reference is made to a number of paragraphs in the
judgment (cited by reference J[paragraph
number]), a true appreciation of the way in
which the various sections of the judgment cohere
together, complement each other, and form an
overall picture of the relative strengths of the
parties' cases can only be achieved by a reading of
the whole judgment. 3. These submissions will seek to show that the
Grounds are selective, superficial and flimsy,
frequently misstating or ignoring the true nature
of the issues, minimising the crushing overall
effect of the adverse findings against Irving and
disclosing no sensible basis on which the judgment
might be set aside or significantly varied. (It has
not been possible in a document of this length to
address each one of the Grounds individually: this
should not be taken to mean that the Defendants
accept the validity of any of those that are not
specifically dealt with). 4. The relevant issues at trial were (in
summary) (1) the meaning of the words complained of
and (2) whether, in those meanings, the words were
true, or sufficiently true to allow the application
of section 5 of the Defamation Act 1952
(justification). Meaning of the words 5. The meanings found by the judge are set out
in J2.15. Subject to one minor exception (see G7),
Irving accepts that those were the right meanings
(see G6). The issue of justification therefore fell
to be determined by reference to those meanings. In
the event, the Defendants succeeded in justifying
meanings (i), (ii), (iii), the first (general) part
of (iv), and (vi). Justification 6. The Grounds are fundamentally flawed in two
main respects: (1) The nature, purpose and effect of
the Defendants' evidence at trial, and the
nature and effect of the judge's findings on
that evidence, are misrepresented.(2) Contrary to what is asserted in G11 and
G13, the judge's assessment of Irving's
credibility as a witness was an important
element in his judgment. 7. The judge gave a summary of his role in
relation to the historical evidence at J1.3, which
Irving adopts and from which the judge never
deviated. It follows that the role of the
Defendants' four historical experts was not to
prove what had actually happened, but to lay before
the court the evidence by reference to which, on
the Defendants' case, 'any fair-minded objective
commentator' (J7.6) would form his conclusions and
the judge should therefore find that Irving was
neither objective nor fair-minded but had
deliberately falsified the evidence available to
him. 8. The judge's overall conclusions on the second
of those questions are set out at J13.136 -
J13.159. The Grounds nowhere attempt a coherent
criticism of those conclusions but are in large
part directed to points of detail which, it is
said, the judge got wrong. Two central features of
the judge's conclusions on this part of the case
which the Grounds ignore are: (1) the number, gravity and
'convergence' of Irving's historiographical
falsifications (J4.12, J13.140-13.144); and(2) the inadequacy of Irving's explanations
for these falsifications (J13.145-13.147). The Grounds Public interest: G10 9. Although the trial undoubtedly attracted a
good deal of public interest, this is not, in
itself, a reason why the Court of Appeal should
give Irving permission to appeal. Before doing so,
it should be satisfied that there are issues of
public interest in the case which, in the exercise
of its appellate jurisdiction, it ought to consider
(always assuming, in the first place, that the
grounds of appeal disclose persuasive reasons to
think that, in respects which matter, the judge
might have erred in the conclusions he reached).
(The complaints made in G5 could only be relevant
if the case had been tried with a jury; but it was
not.) 10. This paragraph of the Grounds misstates the
nature of the case. The case was not concerned with
'issues …of the greatest importance for the
interpretation of the political and military
history of the twentieth century', but only with
the historiographical integrity and ideological
motivation of a particular historian (see 6(1), 7,
and 8 above). Thus the case was essentially a
private dispute, whose context certainly excited
public interest, but whose particular issues and
their resolution involved no general questions of
legal or historical interest. Irving's credibility as a witness :
G11-16 11. It is clear that the judge found Irving an
unsatisfactory and unreliable witness. In J13.145
and J13.146, the judge recounted a number of the
more obviously disingenuous and unconvincing
answers which Irving had given in explanation of
his historical 'mistakes', and he stated his
conclusion at J13.147. Further striking examples of
Irving's lack of candour are to be found at J5.69,
J5.106, J9.13 and J13.95, J10.32 and J13.114,
J13.16, J13.44, J13.95, J13.103, J13.106-7,
J13.113, and J13.121-2 (this is not an exhaustive
list). 12. These considerations, besides leading the
judge to make adverse findings against Irving on
particular issues, also formed one of the bases on
which the judge was enabled to conclude that
Irving's persistent falsification of the historical
record was deliberate and motivated by a desire to
make historical events fit his own ideological
beliefs: J13.139, J13.163. Relevance of the Defendants' motives:
G12 13. Since justification is a complete defence
and there was no plea of qualified privilege or
fair comment, the Defendant's motives had no
bearing on liability and could only ever have been
relevant to the issue of damages (had it
arisen). The weight to be attributed to the evidence
of the Defendants' experts: G17-21 14. As to G19, at trial, Irving attacked only
Evans' motivation (he explicitly exonerated
Longerich and Funke of any personal or professional
hostility or bias and made no challenge to either
Browning or van Pelt on this score). The judge
evidently rejected Irving's absurd attack on Evans.
As to G18 and van Pelt's expertise, see 18
below. 15. G20 and G21 are disgraceful: the Defendants'
experts had done an enormous amount of work, which
was the principal foundation of the Defendants'
case (J4.11, J4.17) and which turned out to be the
principal foundation of the judge's findings (see
generally below). Moreover, the high quality of the
experts' written reports, which the judge had read
before trial, meant that the trial was a good deal
shorter than it might otherwise have been. Subject matter of expert evidence:
G22-28 16. Although it is obvious that the words
'Holocaust denier' or 'Holocaust denial' may convey
different meanings to different people, it is
probable that, in the context of Professor
Lipstadt's book, they should be regarded as terms
of art (J13.92). If so, the evidence of Evans was
admissible to prove their meaning. 17. In any event, this is of no consequence
because the judge was quite entitled to adopt
Evans' definition if he thought that it was
apposite, as he clearly did (J8.1-5; J13.92), and
the Defendants anyway succeeded in proving that
Irving was a 'Holocaust denier' in whatever sense
that term might reasonably be understood
(J13.93-13.98 and J13.161). Van Pelt's qualifications as an expert:
G30-31 18. As the judge found, van Pelt is 'an
acknowledged authority on Auschwitz about which he
has written extensively' (J4.17(ii)) and an
historian 'of the greatest distinction' who 'is
outstanding in his field' (J13.10). The Grounds do
not dispute those descriptions. Van Pelt, like
Evans, Browning and Longerich, was called as an
expert historian. The evidence which he set out and
reviewed in relation to the existence of gas
chambers at Auschwitz and its function as a centre
of mass-extermination was derived from a variety of
sources, including eye-witness accounts,
contemporary documents, archaeological remains,
photographic evidence and chemical analysis. This
is the necessary and normal function of an
historian, who would be open to serious criticism
if he did not take account of such evidence. Section 5 of the Defamation Act 1952:
G32-34 (and 45) 19. G33 and G34 are absurd. The relevant
allegation, which the Defendants did not attempt to
justify, is the second part of meaning (iv) in
J2.15 (contrary to G45, the meaning is not that
'Irving associates with violent extremists'). By
comparison with the allegations which the
Defendants' proved to be true (meanings (i), (ii),
(iii), the first part of (iv), and (vi)), and
having regard to the scale and quality of that
proof (as to which, see generally below), this
minor allegation pales into insignificance: see
J13.137, 13.167. Irving's treatment of historical evidence
generally: G47-53 20. These paragraphs of the Grounds misrepresent
the Defendants' case, which was not that Irving was
a 'bad' historian, in the sense that he was, as a
matter of fact, wrong in his interpretations of the
historical evidence, but that he repeatedly and
deliberately falsified it: J5.3-5.8. The judge
found this case to be established and the Grounds
do not, for the most part, address this crucial
question at all. Nor do they deal with the equally
important consideration that, apart from the
bombing of Dresden, all the many falsifications
which the Defendants established had the same
tendency: the exculpation of Hitler
(J13.140-13.142). 21. Finally, the Grounds fail to mention the
important point that the topics which were examined
by Evans in order to test Irving's
historiographical integrity were not selected at
random, but (with the exception of Dresden) were
all derived from the 'chain of documents' on which
Irving himself had repeatedly relied as showing
Hitler's supposedly benign attitudes and conduct
towards the Jews (J5.7, J13.11). The (so-called) Schlegelberger memorandum
(and the Wannsee Conference): G55-66 22. It is not understood why it is said that the
memorandum is 'central to the appeal on the facts'.
It was certainly not 'central' to the Defendants'
case at trial: it was merely one (indeed perhaps
one of the less striking) of a large number of
examples of Irving's misrepresentation of the
historical evidence (J13.9). 23. These paragraphs of the Grounds misrepresent
both the significance of the issue and the nature
of the judge's finding on it (J13.36). The Grounds
do not address the substance of that finding at
all, but merely make the inconsequential (and
incorrect) observation that the document has been
ignored by other historians (it is in any case a
document of little or no historical importance:
evidence of Longerich, Day 24, pages 23-24). 24. For a proper appreciation of all the
evidence which the judge took into account in
arriving at his conclusion on this issue, it is
necessary to read J5.151-J5.169. A copy of the
document is attached, from which it can be seen
that the description of it in G57 and the second
sentence of G58 is incorrect and that the judge's
description of its salient features in J5.152 is
accurate. The deportation of the Berlin Jews and the
Riga massacres: G68-85 Himmler's log entries for 30 November and 1
December 1941 25. It is accepted that the judge mistakenly
transposed the dates of the two entries in
Himmler's log. But this is of no consequence. What
matters is that the Grounds do nothing to cast
doubt on the correctness of the judge's findings on
this part of the case. - The entry for 30 November
1941[1]
26. Contrary to what is stated at G70, Irving
not merely admitted, but asserted, that his
rendering of 'Judentransport' as 'Judentransporte'
was 'a silly misreading' (Day 2, p289, line 6).
Confronted the next day with evidence that, as long
ago as 1974, he had known that the word was
'Judentransport' (singular), Irving shifted his
ground and asserted instead that he had taken the
word to mean 'transportation of Jews' generally
(Day 3, pages 28-32): see J5.106. This was equally
implausible because the word 'Judentransport' was
qualified in the original by 'aus Berlin' (see 27
below). 27. The Grounds ignore the crucial point that,
as he accepted at trial, Irving's representation of
the entry in both editions of Hitler's War (1977
and 1991) suppresses the words 'aus Berlin' (J5.98,
J5.106, J13.21), thus allowing him brazenly to
transfer Himmler's prohibition from a particular
transport of Berlin Jews to Jews in general. As
J5.99 shows, G73 is a travesty of the evidence
given at trial. See also the judge's conclusions at
J13.21-J13.22. - The entry for 1 December
1941[2]
28. So far from being merely 'regrettable', the
misrepresentation of 'haben' as 'Juden' was plainly
material (J13.23), not least because Irving's
explanation as to why it was retained in the 1991
edition of Hitler's War after he had been made
aware of it was obviously disingenuous (J13.146-7);
and also because it forms part of a pattern of
'errors', all of whose tendency was to exculpate
Hitler (J13.140-142). These important points are
ignored in the Grounds. The suppression of parts of Bruns'
statement: G79-80 [3] 29. The judge's damning conclusions are
unassailable: even if there were force in Irving's
contention that the second sentence of Bruns'
recorded statement - 'they [the mass-shootings
of Jews in the Ostland] are to be carried out
more discreetly/cautiously
['vorsichtiger']' - lacked corroboration
(which in fact it did not), the fact remains: that no objective, fair-minded historian would
deliberately suppress this entire sentence but
would, on the contrary, recognise that it must be
reproduced and given its due weight (whatever that
might be); that Irving's suppression of the words 'on that
scale' (more correctly, 'of that kind': derartige)
in the first sentence of the statement completely
alters its sense; and, hence, that Irving deliberately and perversely
transformed the statement - which reported an order
from Hitler that the mass-shootings were to
continue (but more discreetly) - into a
representation that Hitler had ordered that 'such
mass murders were to stop forthwith'
(J5.113-4). Hitler's views on the Jewish question:
G81-85 30. The Defendants' case on this topic (contrary
to the impression given by the Grounds) was founded
on a number of examples (eight or more) of Irving's
falsification of the evidence. The case is
summarised in J5.123-136 and Irving's response at
J5.137-150. The judge's findings, based on all the
evidence, are at J13.26-31. If these passages in
the judgment are read in their entirety (as they
should be) they constitute a devastating
condemnation of Irving's historiographical methods
and integrity. 31. The Grounds reveal no basis on which those
conclusions can be challenged: with one trivial
exception (G81), which ignores Irving's concession
and his unsatisfactory explanations noted at
J5.143, the individual criticisms made by the
judge, damning as many of them are, are simply not
dealt with at all; and their cumulative effect is
also completely ignored. So, too, is their place in
the overall convergence of the evidence as
demonstrating Irving's invariable tendency to
falsify history in order to exculpate Hitler
(J13.140-142). Goebbels' diary entry for 27 March 1942:
G86-89 [4] 32. In the light of the evidence of Irving's
manipulation and misrepresentation of this diary
entry, and of the obvious inadequacy of Irving's
explanations and counter-arguments, the judge's
conclusion was inevitable, and the Grounds contain
nothing to suggest otherwise. For the issue was not
whether parts of the diary entry were 'hearsay',
but whether any objective fair-minded historian
would have deliberately suppressed them so as to
produce a sanitised version from which the evidence
of Hitler's complicity in the murder of the Jews in
the General Government had disappeared. This was,
in truth, another shocking example of Irving's
deliberate falsification of history, fitting into
the same pattern as all the others. 
Endnotes to this section1 The Defendants' principal criticisms of Irving
in relation to his treatment of this entry are at
J5.97-99, Irving's response is at J5.104-9 and the
judge's findings are at J13.21-22. 2 The Defendants' criticisms of Irving are
summarised at J5.100 and Irving's response at
J5.110 3 The Defendants' criticisms of Irving are
summarised at J5.113-114, Irving's response at
J5.117-119 and the judge's conclusions at
J13.24. 4 See J5.170-172 (introduction); J5.173-178
(Defendants' case); J5.179-186 (Irving's response);
J13.37-38 (findings). | 
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