THIRD AFFIDAVIT OF JAMES LEWIS
LIBSON
I, JAMES LEWIS LIBSON of 21 Southampton Row,
London WC I B 5HS MAKE OATH AND SAY as follows: 1. I am a solicitor in the firm of Mishcon de
Reya and have the conduct of this matter on behalf
of the Second Defendant ("Professor
Lipstadt"). The contents of this affidavit are
within my knowledge and are true save where appears
otherwise from the context. 2. I swear this affidavit in response to the
Plaintiff's application for an Order that Professor
Lipstadt's Defence be struck out or, alternatively,
she serves a Further and Better List of documents
together with an Affidavit sworn by Anthony Julius
of this firm. who has overall conduct of this
matter. Professor Lipstadt's discovery 3. On 20 January 1999, in compliance with the
Order of Master Trench dated 15
December 1998. Professor Lipstadt swore an
Affidavit verifying the first List of Documents she
served on 17 February 1998 and the Supplemental
List of Documents she served on 9 September 1998
(together "the Lists"). The unsworn Affidavit was
served on the Plaintiff on 12 January 1999 and the
jurat followed on 21 January 1999. In her
Affidavit, Professor Lipstadt confirms that she has
given full discovery of all the documents relating
to the matters in question in this action, which
are in her possession, custody or power. There is
now produced and shown to me an Exhibit marked "JLL
3" containing various documents and correspondence.
At pages 1-2 is a copy of Professor Lipstadt's
Affidavit. At pages 3-48 and 49-60 are Professor
Lipstadt's First and Supplemental Lists of
Documents respectively. 4. At Schedule 1 Part 2 of the Lists, Professor
Lipstadt claims privilege over documents prepared
by or for the use of my firm for the purposes of
this action. This includes documents prepared by
third parties and sent to my firm for the purposes
of advising Professor Lipstadt on and preparing her
defence. Naturally, Professor Lipstadt (an American
citizen and resident there) has taken advice from
this firm as to what privilege can be claimed and
in respect of which documents. The privileged videos 5. In the course of my investigations into the
Plaintiff's political links with the far right
(which is an issue in question in the action on
which Master Trench has directed in his Order of 24
November 1998 that expert evidence may be adduced),
I was given the following videos by a third
party: (i) a video numbered 23 which is a copy
video of two programmes,
Dispatches and
This Week broadcast
on 27 and 28 November 1991 respectively -- the
programmes are documents about right wing
political groups in Germany and show scenes of
right wing and neo-Nazi rallies. There are clips
of the Plaintiff's attendance and speeches at a
number of these rallies.
Dispatches is the
English version of a documentary by Michael
Schmidt shown in Sweden in 1991;(ii) a video numbered 226 which is a copy of
the "rushes" of the programme
This Week -- rushes
are the unedited recordings of film footage
taken during the making of the programme but
which are not used in the final version of the
programme which is broadcast; and (iii) a video numbered 227 which is a copy of
further "rushes" of the programme
This Week. 6. I do not exactly recall the date on which I
was given the videos. However, it was some time
early in 1998. I was not given any other videos
from the third party. 7. In the course of assisting the experts, my
firm has conducted extensive investigations. This
has resulted in the receipt of documents covered by
litigation privilege. Given the nature of these
documents, some of them will have been created
before the litigation began and others will have
come into existence for the purposes of the
litigation. Insofar as these are referred to and
appended to the expert reports, currently due to be
exchanged on 31 May 1999, privilege will be waived
in relation to them. As far as the privileged
videos are concerned, it is likely that the expert
on political extremism in Germany, having reviewed
them, will include some of the material from the
privileged videos in his report. 8. I understood when I was given the privileged
videos that they were copies of the third party's
own "original" copies. However, on receipt of the
Plaintiff's Summons, when I made further enquiries
of the third party. I was informed and believe that
it is likely I was given their "original"
copies. The Plaintiff's videos 9. The Plaintiff served a Third Supplemental
List on 24 November 1998 ("the Third List"). At
pages 61 -- 75 of exhibit JLL 3 is a copy of the
Third List. Document 2025 discloses a select
inventory of video and audio recordings. On
visiting the Plaintiff's house to inspect the
documents in his Third List, the Plaintiff handed
me a list of the videos arid audio cassettes in his
possession. custody and control which are relevant
to the action and to which document 2025 refers. A
copy of the Plaintiff's list of videos is at pages
76-80 of exhibit JLL3. In or around December 1998
the Plaintiff sent my firm all the videos he had
produced at inspection for copying. Video number
213 in the Plaintiff's list of videos contains a
recording of the same Dispatches and This Week
programmes that are on the privileged video 223
referred to at paragraph 5(i) above. 10. After copying the Plaintiff's videos, my
firm returned some of the original videos to him
under cover of a letter dated 8 April 1999, as
specified in paragraph 1 of the letter. At
paragraph 2 of the letter, my firm promised to
return the remaining videos within the week. A copy
of the letter is at page 81 of exhibit JLL3. Under
cover of a letter dated 14 April 1999 (at page 82
of exhibit JLL3) my firm duly returned the
remaining videos belonging to the Plaintiff to him.
In his letter of 15 April 1999 (at page 83 of
exhibit JLL3) the Plaintiff confirms all his videos
have now been returned to him. Inadvertent disclosure of the privileged
videos 11. The labels on the privileged videos are the
same as those on the Plaintiff's videos. I am
informed and believe that the paralegal who was
responsible for returning the Plaintiff's videos,
believed that the privileged videos therefore
belonged to the Plaintiff and accordingly, sent
them to him under cover of the letter of 8 April
1999. This was merely an error on her part and does
not constitute a waiver of Professor Lipstadt's
privilege. 12. Given that the privileged videos had not
been disclosed in either of the Lists (other than
within Schedule I part 2). and that Professor
Lipstadt has verified her Lists on Affidavit. it
should have been clear to the Plaintiff that they
had been disclosed in error. Accordingly, the
Plaintiff should have telephoned my firm
immediately on discovering the privileged videos to
inform us he had received them, whereupon we would
have advised the Plaintiff that privilege had not
been waived and that he should return the videos
and any copies or notes thereof to us
immediately. 13. On receiving the Plaintiff's Summons and
discovering what in fact had taken place, my firm
immediately faxed a letter to the Plaintiff on 19
April 1999 (page 85 of exhibit JLL3) stating that
privilege in the videos had not been waived and
asking him to return them immediately. The
Plaintiff replied by return (page 86 of exhibit
JLL3) asking if he could return what he called the
"rogue" videos at the hearing of his Summons. My
firm immediately responded to ask the Plaintiff
again to return the privileged videos Immediately.
A copy of this letter dated 19 April 1999 is at
page 87 of exhibit JLL3. At the time of swearing
this Affidavit, the privileged videos have not been
returned. 14. My firm sent a further letter on 19 April
1999 (page 89 of exhibit JLL3) clearly setting out
the grounds for claiming privilege in the third
party's videos, as requested by the Plaintiff in
his fax of 19 April 1999 (at page 88 of exhibit
JLL3). We proposed that, as it was likely we would
be waiving privilege in any event in due course in
the third party's videos on exchange of expert
reports. the Plaintiff should return them to us
whereupon we would supply him with a copy set. At
the time of swearing this Affidavit, the Plaintiff
has not responded to this letter, The Plaintiff's Summons 15. In his Summons, the Plaintiff claims that
Professor Lipstadt has either fraudulently and with
intent to deceive or recklessly or negligently
sworn a false affidavit. namely her Affidavit of 20
January 1999, and accordingly her Defence should be
struck out. This is clearly not the case. I am
informed and believe that Professor Lipstadt has
complied fully with her discovery obligations. The
privileged videos have never been in Professor
Lipstadt's personal possession, nor as far as I am
aware, has she ever seen them. 16. The Plaintiff also seeks an order that
Professor Lipstadt serve a Further & Better
List of Documents and that Mr Julius file an
affidavit verifying such a List. As far as I am
aware, no further documents have come into
Professor Lipstadt's possession, custody or power
which do not attract privilege. Accordingly, there
are no further documents for Professor Lipstadt to
include in a Further & Better List. 17. The Plaintiff also asks the Court to order
that in his verifying affidavit Mr Julius confirms
when and from whom the privileged videos were
obtained. The Plaintiff is not entitled to this
information. The documents are privileged and the
particulars he seeks are irrelevant. 18. The Plaintiff further asked that Mr Julius
explain what has become of item 221 referred to in
the first paragraph of the letter of 8 April 1999.
I can confirm that there is only one item 221. It
is a video belonging to the Plaintiff which he has
disclosed in his list of videos. As promised in the
second paragraph of the letter, item 221 was
returned to the Plaintiff under cover of my firm's
letter of 14 April 1999. The reference to item 221
in the first paragraph of the letter of 8 April
1999 is merely a typographical error, It should not
have been mentioned there. 19. In paragraph 2(iv) of his Summons, the
Plaintiff implies that there is a second item 221
which forms part of a series of videos which
include the privileged videos that Professor
Lipstadt has not disclosed. This is incorrect. As I
have said at paragraph 19 above. there is only one
item 221 which is the video belonging to the
Plaintiff, This has been returned to him, 20. The Plaintiff further asks Mr Julius to
state in his affidavit whether items 224 and 225
which he implies form part of an alleged series of
videos, are indeed videos and to confirm what has
become of them. I can confirm that neither I. nor
Mr Julius, nor Professor Lipstadt know whether any
videos numbered 224 and 225 exist and whether they
form part of the so-called series the Plaintiff is
alleging exists. The Plaintiff's Affidavit 21. The Plaintiff claims that he has had
difficulties in obtaining proper discovery from
Professor Lipstadt. This is not correct. Professor
Lipstadt has complied with her discovery
obligations. As regards document 500 which the
Plaintiff refers to at paragraph 5 (ii) of his
Affidavit, I refer to paragraphs 5-7 of Mr Julius'
Affidavit sworn on 14 December 1998. A copy of the
Affidavit is at pages 90-92 of exhibit JLL3. This
Affidavit was sworn in response to the Plaintiff's
application for further discovery, supported by his
Affidavit of 24 November 1998. (a copy of the
Plaintiff's Affidavit is at pages 93-104 of exhibit
JLL3). Mr Julius was responding particularly to
paragraphs 5(v)-(vi) of the Plaintiff's
Affidavit. 22. The Plaintiff seeks to compare Professor
Lipstadt's discovery with that of his own. However,
he has not presented the full position as regards
his discovery. On 11 September 1998, Master Trench
ordered the Plaintiff to serve a supplemental list
and a verifying Affidavit within 28 days. By 20
November 1998, the Plaintiff had not complied with
Master Trench's Order. Accordingly, Professor
Lipstadt made an application supported by an
Affidavit sworn by Mr Julius on 20 November 1998
(at pages 105-7 of exhibit JLL3) for an Order than
unless the Plaintiff comply with Master Trench's
Order of 11 September 1998, his claim be struck
out. The Plaintiff finally served his Third List
and verifying Affidavit on 24 November 1998. 23, The Plaintiff alleges at paragraph 25 of his
Affidavit in support of his Summons that the reason
my firm has not disclosed the privileged videos to
him, was because my firm believed it would harm
Professor Lipstadt's case, This is not true, on the
contrary, the rushes are extremely helpful to
Professor Lipstadt's case as they clearly
demonstrate the Plaintiff's links and political
activities with the far right, as shall be
demonstrated in the expert's report on this
issue. 24. There is no justification in the Plaintiff's
statement at paragraph 33 of his Affidavit that
because Professor Lipstadt has instructed a firm of
lawyers, there is little prospect that she intends
to assist in a fair trial of this action. Order sought 25. Accordingly, the Plaintiff has no grounds
for striking out Professor Lipstadt's defence or
for going behind her Affidavit of 20 January 1999,
which is conclusive in the absence of any evidence
of deliberately suppressed documents. There is no
real or substantial risk that the Plaintiff will
not receive a fair trial and that justice will not
be done. I therefore ask that the Honourable Court
to deny the Plaintiff the relief he is seeking in
his Summons and instead to order that he return the
privileged videos to my firm's custody immediately
on my firm's undertaking to provide him with copies
of the same. I also intend to copy a set of the
privileged videos and return the "original" videos
to the custody of the third party. Sworn this 21st day
of April 1999 [signed] James
Libson Before me,
[signature]
A SOLICITOR MEMERY
CRYSTAL
31 SOUTHAMPTON ROW
LONDON WC1B 5HT
0171-242 5905 | 
