David Irving diary of hearing of his Application in the High Court on Friday April 23, 1999

April 23, 1999   

UP AT 7 a.m. I check the e-mails . . . exactly 200 incoming e-mails are waiting for me this morning.

All morning finalizing the skeleton argument and authorities. I have made a colour scan of the video labels, and printed up copies for the court -- just in case Mishcon [Deborah Lipstadt's lawyers] fail to bring the originals as they have undertaken.

To Court at 3 p.m. with S. At 3:30 p.m. my opponents march up -- James Libson, a rather hushed Anthony Julius, a female solicitor, counsel, and a couple of trainees. No hands are shaken; there are no introductions. Boors, the lot of them. It's going to be a costly day for them. I lead off with our skeleton argument. Master Trench [the judge] has read enough to recall that the meeting covered by this raw videotape footage has included the Nov 9, 1991 open-air speech at Halle, etc.

I begin by stating that much of what we are to deal with is unrefined Style & Hollander, a legal text-book (tho' not an authority) which I have found, as a layman, disturbing for its advice to lawyers on how to avoid accidentally helping their opponents to establish the truth of a matter: i.e., never allow a third party to bring documents to your office, in which case they are discoverable -- always inspect them at the third party's premises in case any of them may actually help or even exonerate your opponent; I make a jibe about the morality of lawyers which has the judge murmuring, "Quite, quite", and S. wincing and trying to hide behind our mound of files.

Being the only non-lawyer in the packed room I can afford the remark. The only one with clean hands in this respect, I suspect (apart from S. and the Master).

I conclude by saying I am a small, powerless litigant-in-person, totally ignorant of the law, up against a wealthy, conniving, clever, cunning and unscrupulous firm of lawyers, so I have to rely on the protection of the court from fraudulent methods such as these. This is not the first time that Lipstadt's lawyers have tried to hide documents from me, I recall: I remind the court of the saga of Document No. 500, and of the entire categories of documents before that - all of which have been produced only after I served summonses on her. Master Trench inquires about No. 500 - "What was that?" "That was a secret 25-page report on me compiled by the Canadian Jewish Congress," I explain. Lipstadt has thus shown that I cannot expect a fair trial (one of the prerequisites for the defence to be struck out).

As for the three rogue videos which have triggered today's action, I add, it was an Act of God that had led the Enemy to bounce their ball across the fence into my patch; now they have pleaded with me to give them their ball back. God has disposed that the ball bounced my way; it is for Master Trench, as God's servant, to ensure that these wicked lawyers are punished and that I am protected from such machinations in future. S. winces again. The pile of files in front of her is not high enough to hide behind.

AROUND 4:20 p.m. the judge looks at the clock, and asks how long we expect the hearing to take, as he has an invitation to a party at four-thirty, to celebrate the Issue of the Last Writ (as from Monday new Rules come into force: a Writ becomes a Claim, etc.). I offer to adjourn for a while, but he says: "No, I'd prefer to carry on here, this is much more interesting.")

Mishcon's counsel - he does not vouchsafe his name - is wordy and discursive. For the concealment of the videos he produces acres of excuses, but no excuse. At the end of it, I wearily dig myself out from beneath this torrent of verbiage, and deliver a brief reiteration of the main points.

Master Trench is clearly angry that Professor Lipstadt has failed to identify these videos in her lists, even in the section of privileged litigation documents and memoranda (Schedule 1, Part 2). "How can a litigant trust the assertion of privilege under Order 25, rule 5 (2) if he does not know what the documents are?" he asks. And: "How is Mr Irving to know what documents to challenge on privilege if you do not even list them?" "I really think these videos should have been listed," he repeats. Then: "I can understand the Plaintiff's suspicion, but I don't think it goes so far as to say that the Second Defendant acted in the way set out in the summons."

That is, fraudulently. He will therefore not order Lipstadt's defence struck out on the grounds that she swore her affidavit fraudulently or negligently, since James Libson in his affidavit has successfully fudged the crucial issue as to whether those videos we obtained were "copies of originals" or "originals of copies." Privilege can only be asserted for pure copies made for litigation purposes. He then says that he can not grant the secondary application sought either -- for an order to Mr Julius, a solicitor, to make an affidavit -- as he has no jurisdiction to do so. Instead he invites Mishcon to set out in an open letter to me a list of any other documents that they have up their sleeve, to enable me to challenge them if I consider the items are not privileged.

Anthony Julius now comes alive and instructs counsel to submit that the Court should state explicitly a finding that Deborah Lipstadt has not sworn a fraudulent affidavit. I interject that Mr Libson has tried to the very 11th hour to pretend that all three videos are privileged, when they aren't; that he has pretended that they are copies, and thus privileged, whereas their type (Super-VHS) reveals that they are clearly originals, from inside the actual newsreel camera. I add that Mr Libson has given an undertaking only yesterday to bring the videos to the Court today, which undertaking he has breached. Libson denies this undertaking, but I produce his letters which prove it.

That sinks them, and Master Trench pronounces deliberately that he will not declare that Deborah Lipstadt has not sworn a false affidavit "fraudulently and with intent to deceive me", as Julius requests. Which is highly unpleasant for the defence.

The "invitation to write an open letter" sounds a bit woolly, and I ask the Court to elaborate: what sanctions can he apply if they disobey? The answer is, in effect, none. "But they will no doubt incur your displeasure," I venture, "if they flout your invitation."

There remains the issue of costs. Master Trench has already made plain that, given what he has heard of Mishcon's behaviour, "This will have a bearing when it comes to any application for costs." Mishcon do not dare to ask for costs: and I agree that no order for costs should be made. (My own are minimal; theirs again probably around ten thousand pounds).

A letter of complaint goes to the Office for the Supervision of Solicitors.

Index to Irving v Penguin & Lipstadt