Posted Wednesday, December 16, 1998

High Court in London orders Deborah Lipstadt to verify her document discovery on oath

The writer's diary record

FOR THIRTY-FIVE years author David Irving has kept a private diary. It has proven useful in countless actions. For the information of his many supporters he publishes an edited text in his irregular newsletter ACTION REPORT.	Summary British writer David Irving is suing American professor of religion Deborah Lipstadt in Libel, for lies about him contained in her book Denying the Holocaust, which she wrote at the behest of Vidal Sassoon, Yad Vashem, and other similar agencies. The action will be tried in 1999. In a hearing in chambers at the High Court on December 15, 1998 Prof. Lipstadt's attorney Anthony Julius pleaded that she should not be required to verify her Discovery lists of documents by affidavit. The Court disagreed.
ECEMBER 15, 1998 (Tuesday) London, England     BUS TO the High Court at 1 p.m., and the hearing before Master Trench begins at 2 p.m. Trench indicates that he is today considering our three Summonses, of which my two (served with good reason, demanding that Deborah Lipstadt verify her discovery-lists by affidavit) are dated earlier than that served by her lawyer Anthony Julius (on the Irving Diaries); but, as he says we have all afternoon, I let Mishcon's Anthony Julius open the batting, which seems better tactics. Master Trench observes that Davenport Lyons, acting for the other defendant Penguin Books, have not appeared today, and comments that they appear content to let Mishcon do all the hard work. Julius smirks that this is so; he implies that they are well-advised to leave matters in his hands. All parties have reached agreement on my providing all my personal diaries for inspection, says Julius (left), except that I am now demanding a guarantee in the amount of £50,000 to ensure that Professor Lipstadt does not make any use of them that breaks the express undertaking as set out in the order. The master takes my point, namely that with Lipstadt domiciled in the USA it will not be possible (for First Amendment reasons) to enforce any judgement or pecuniary sanction a British court may impose in the event of a violation (unless she should set foot in Britain subsequently). There seems no way to draw up such an Order however, and I have to withdraw this desideratum, with myself remarking, after half an hour's debate, that the discussion will have served to concentrate the mind of Mishcon de Reya on their duty to educate the professor as to her obligations and the express undertaking, and that this will facilitate any action I may have to take against them in the event of any damage suffered by a breach. My own Summons concerns my insistence that Professor Lipstadt be required to verify her two lists of documents (her "discovery") by swearing an affidavit. I remind the Court that she has required me to serve a new list and verify by affidavit, to which I readily agreed, although the task has inflicted a colossal two-thousand man-hour task on me and my staff since August, involving as it has the re-examination of my entire collected files of thirty-five years. But it is an obligation under the rules which I have most punctiliously discharged. Her own discovery has been wanting in several respects. I take the Master through a file of seventy pages of letters and lists, which establish that very early on I identified a certain document No. 500 in her list, as being of significance; that I repeatedly requested that this document be properly identified to me, with its attendant papers -- it is a lengthy report clearly generated by a foreign agency (which the undertakings prevent me from identifying here); and that I be provided with a copy of this and other items. Not until September 29, after I served a Summons on them, was this document eventually provided.
I also advise the Master that in March I requested under Order 24 that Professor Lipstadt produce her correspondence with certain named agencies and entities in the United States, Canada, London, and Israel, and that Mishcon de Reya studiously ignored this request for six months -- and that it was only after I served a Summons that, three or four days later, on the very eve of the hearing, the lawyers served a very comprehensive list of these documents, which might seem to suggest that these documents were on their premises all the time. Taking the Master through this new list and some samples of the documents thus obtained, I say that there can not have been the slightest doubt in Mishcon's mind as to the discoverable nature of these documents, yet they have "looked at the wall and whistled" for six months. Certain of these documents, I add, refer to other important items, as yet unprovided, which I also require to see, and these have also yet to be provided. In short, the manner in which the lists and copies have been provided has been dilatory, deficient, obfuscating, and (I submit) deceptive, the latter being a reference to the fact that the letter accompanying No. 500 was dated September 28, the day before I issued my Summons, but it was actually postmarked September 29, after it was served. Julius argues his case well, as is to be expected. Unlike myself, he is eloquent, forceful, and coherent. He suggests that it will be wrong to blame Professor Lipstadt because of the shortcomings and inadequacies of her solicitors, Mishcon -- which draws the obvious rebuke from Master Trench that in my eyes as Plaintiff there is no distinction between them. Julius cites again from Allan v Swan Hunter Shipbuilders Ltd as an authority, and reads a passage from Malik and Matthews which suggests to him that I may not even rely on Order 24, rule 3, of the Rules of the Supreme Court. However, the weakness of that argument lies in the ensuing lines (page 120), which Mr Julius has the courtesy to recite to the Court (I will otherwise do so myself): "Where the Court is not satisfied with the adequacy of a List produced pursuant to rule 3(1), or fraud is alleged, or the existence or authenticity of documents is in issue, or privilege is claimed is in issue, or the Court wishes to impress on the parties the importance of full and frank discovery, the Court may be inclined to order a verifying affidavit." That is the argument I rely on, I say. I remind the Court that for six months Mishcon "hid behind a bush," and did nothing on my requests for documents -- a perhaps over-colourful language which the Master swiftly and properly condemns. I am not claiming that Lipstadt's lists are fraudulent, I add, or that her documents are not authentic, but it does seem that an affidavit should now be ordered, given the manner in which they have been produced to me. In short, the Court may think it useful to remind her of her very serious obligations under discovery. Master Trench agrees, and orders that she now file and serve an affidavit verifying her lists. It is a new victory in battle, though not the war. I anticipate that it may well cause soul-searching at Mishcon, and the realisation that they do have further discoverable documents after all -- perhaps even on their premises. Who knows (we do)! Master Trench asks me what order he should make on costs -- to which I am entitled, having prevailed in this matter. I say: "I ask for no order as to costs." The Master's eyebrows shoot up -- it is most unusual, he remarks: I want to say that I am moved by the Christian spirit, this being the season for good-will; but stricken with paranoia that this may incur accusations of anti-Semitism from Mr Julius and his coterie, I pack my papers, murmur "Thank-you, Master," and withdraw. It is teeming with rain, and I splurge on a taxi back to Duke Street.
Previous interlocutory hearings   September 11, 1998   September 15, 1998   October 2, 1998
© David Irving 1998.

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