1996-I-No 1113 IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MASTER TRENCH IN CHAMBERS

BETWEEN

[... etc]

UPON HEARING the Plaintiff in person and the solicitors for the First and Second Defendants

IT IS ORDERED THAT

1. Every party shall by 30 December 1998 serve upon every other party statements signed by those witnesses of fact upon whose evidence is intended to rely.

2. There shall be liberty to restore the Summons for Further Directions.

3. The costs of this application to be in the cause.

Dated this 15 day of September 1998.

Dear Sir

DAVID IRVING V PENGUIN BOOKS & ORS

We refer to Tuesday's Hearing and the outstanding directions.

It is proposed that the following areas should be the subject of expert evidence:

1. The Plaintiff as a Holocaust denier;
2. The Plaintiffs exculpation of Hitler;
3. The existence of gas chambers and exterminations at Auschwitz and other centres;
4. The Plaintiff as a political extremist;
5. The Holocaust as a plan to exterminate Europe's Jews.

Accordingly, we intend to call expert evidence to deal with these issues.

We do not accept the areas you identify in your summons as being appropriate for the subject of expert evidence. Please explain, bearing in mind that at the recent Hearing of our client's discovery application, you accepted the issues identified in Mr Julius' First Affidavit as being the relevant ones.

Please confirm that your experts will be in a position to exchange reports by mid-March, so that we can inform the Master that exchange of expert reports can take place then. Presumably you are no longer seeking direction 12B of your Summons.

We note from your Summons that you wish the matter to be tried by Judge alone. Is this still your position?

Yours faithfully

MISCHON DE REYA

Copy    Davenport Lyons (by fax)

1:\lipstadt\letters\let.di. 17.09.doc Switchboard:  +44 (0)171 440 7000 Main Fax:     +44 (0)171 404 5982

A list of partners is available for inspection at the above address The firm is regulated by the Law Society in the conduct of investment business.

September 15, 1998

 Dear Mr Libson

Deborah Lipstadt

I enclose herewith by way of service an affidavit sworn in the above matter by Mrs B[&emdash;], wife of Professor H [B&emdash;], of Portland, Oregon.

2. I further enclose copy of a page from the records of the Portland Police, Oregon, about your witness Mr Mozzochi, and remind you that you undertook to provide us with a proper address for Mr Mozzochi to enable us to pursue further inquiries.

Yours sincerely,

David Irving

Hearing in Chambers before Master Trench, September 15, 1998: he makes the Order with parts conditional on Mishcon de Reya identifying the address of the deponent Jonathan Mozzochi to the Plaintiff David Irving within seven days.

17 September 1998

Dear Sir

DAVID IRVING V PENGUIN BOOKS & ORS

We refer to Tuesday's Hearing and the outstanding directions.

It is proposed that the following areas should be the subject of expert evidence:

1. The Plaintiff as a Holocaust denier;
2. The Plaintiffs exculpation of Hitler;
3. The existence of gas chambers and exterminations at Auschwitz and other centres;
4. The Plaintiff as a political extremist;
5. The Holocaust as a plan to exterminate Europe's Jews.

Accordingly, we intend to call expert evidence to deal with these issues.

We do not accept the areas you identify in your summons as being appropriate for the subject of expert evidence. Please explain, bearing in mind that at the recent Hearing of our client's discovery application, you accepted the issues identified in Mr Julius' First Affidavit as being the relevant ones.

Please confirm that your experts will be in a position to exchange reports by mid-March, so that we can inform the Master that exchange of expert reports can take place then. Presumably you are no longer seeking direction 12B of your Summons.

We note from your Summons that you wish the matter to be tried by Judge alone. Js this still your position?

Yours faithfully

Mishcon de Reya

Copy Davenport Lyons (by fax)

September 18, 1998

 Dear Mr Libson

Deborah Lipstadt

I attended your offices today and inspected the documents produced in your client's Supplemental List [ . . . rest of paragraphs 1-4 is omitted as they concern Discovery]

5. Since nothing has emerged to support the plea of justification in regard to several of the grave libels including those respect of Farrakhan, the Hizbollah, and the allegation that I damaged archival materials, it is now open to me to apply for Judgement on admissions [...].

Yours sincerely,

David Irving

September 21, 1998

 Dear Mr Libson

Deborah Lipstadt,

Responding to your letter of September 17, I shall reply in detail to your proposed areas for expert evidence, and your query about direction 12B, in about a few days' time after discussing this with my friends. I shall not however agree with 1, 2 and 4 as currently framed by you. I am uncertain as to the relevance of 3 to the issues stated in this case, and 5 appears rather muddled in its phrasing, describing as it does the Holocaust as a plan rather than an outcome. Perhaps you meant "the Holocaust as the result of a plan to exterminate Europe's Jews." You will appreciate the difference in phrasing.

2. I did not accept the issues identified in Mr Julius' First Affidavit as being "the" relevant ones, but as being, under certain circumstances, of relevance.

3. May I take it that your client intends to verify her Further and Better List, which I have now inspected, by affidavit. Since she has required me to verify my further lists by affidavit, I am entitled to the same courtesy. I shall press this point, if need be.

4. It is my belief that the issues before the court, particularly in matters of semantics and the German language, are sufficiently complex to require the attention of a learned judge, and too complex to confront a jury with. I further believe that any attempt to prejudice a fair trial of this case by the introduction of emotional or colourful evidence about the Holocaust and other horrors of world war II would be better withstood by a judge than by a jury.

Yours sincerely,

David Irving

24 September 1998

Dear Sir

PROFESSOR LIPSTADT

Further to your letter of 15 September and our undertaking to the Court, the address of the Coalition for Human Dignity is PO Box 40344, Portland, Oregon 97240 USA.

We will be attending before Master Trench to have the Order made on 11 September 1998 amended in the manner agreed at the hearing on 15 September.

Yours faithfully

Mishcon de Reya

24 September 1998

Dear Sir

PROFESSOR LIPSTADT

We refer to your letter of 18 September relating to discovery. Points 1-4 will be dealt with separately. Point 5 you have raised before and have done nothing about. If you are going to make such an application, please do so without further delay.

Yours faithfully

Mishcon de Reya

September 24, 1998

 Dear Mr Libson

Deborah Lipstadt, Queens Bench 1996-I-No.1113

Responding to your two letters of September 24 received by fax this afternoon:

1. You have now supplied what you state is a Post Office box address of the Coalition for Human Dignity. With respect, this does not repair the deficiency in the two affidavits of Jonathan Mozzochi, namely that the deponent must identify his address. Under O. 41, r 4 a deponent is required to state his place of residence, and he is only allowed to state in the alternative "the address at which he works" if he gives evidence in a professional or other occupational capacity. Clearly Mr Mozzochi cannot "work at" at a Post Office box.

Moreover, since the deponent Mozzochi himself states in his second affidavit, para. 2, that he has meanwhile left the Coalition for Human Dignity he cannot give that as his address. Given the importance of these two affidavits, and the scandalous nature of the allegations therein, we made plain to yourselves in the hearing before Master Trench and in correspondence with yourselves that we require the deponent's address in order to conduct further inquiries. Please inform me of the time and date when you will be attending before Master Trench to enable me to object to the Order being amended, on the basis that you have not complied with your undertaking to the Court, as argued above. Should you not do so, I request that you produce this letter to Master Trench.

2. Second letter. I have delayed making our application until your client completed her supplemental discovery to us. Now that we have inspected those items and determined that there are still no grounds that would substantiate her plea of justification, we shall make our application, as stated and in good time.

Yours sincerely,

David Irving

[Copied to Master Trench, in Chambers, by fax.]

25 September 1998

Dear Sir

PROFESSOR LIPSTADT

We refer to your letter of 21 September. Adopting your numbering:-

1. Experts: we hope that this will not be a mater for dispute and that we can agree both your and our requirements of expert evidence.

Our Proposals

Expert evidence must go to the issues in the case. The issues in a libel action are taken from the pleaded meanings and the Particulars of Justification. Taking only what is essentially common ground in the Statement of Claim, Defence and Reply, the issues that must be addressed by experts are:-

(a) Are you a Holocaust denier?

(b) Do you hold extremist views and have connections with extremist organisations?

(c) Do you distort, manipulate, misconstrue etc history?

(d) Are you an Adolf Hitler partisan?

We say yes to all four questions. You demur.

Each issue begs questions in relation to which the Court will need assistance from experts

(a) Holocaust Denier:

(i) What was the true nature of the Holocaust? This requires an examination of the Holocaust's constituent elements, principally (but not exclusively):

• the Holocaust as Nazi policy;
• the existence of gas chambers and exterminations at Auschwitz and other centres;
• Hitler's responsibility/knowledge;
• the number of Jews killed.

(ii) Based on this, are you a denier? i.e. do you deliberately misstate the true nature of the Holocaust?

These questions must be addressed by historians cf the period.

(b) Extremist Views:

(i) Are the organisations with which you associate extremist?

(ii) Are your published works, speeches etc extremist?

These questions must be answered by a political scientist who can provide the Court with a definition of extremism and place your views and writings in their proper context.

(c) Distortion of history:

(i) Do your published works demonstrate examples of distortion, manipulation, misconstruction etc of source material?

(ii) Is this more than legitimate historical interpretation?

These are questions for an expert in historiography.

(d) Hitler Partisan:

(i) Do your published works demonstrate an effort to exculpate Hitler that is not consistent with the historical evidence?

(ii) Do you distort, manipulate, misconstrue etc in order to portray Hitler in a more favourable light?

These are questions for an historian who is an authority on Adolf Hitler's career.

Your proposals
We take your proposals from the Summons for Directions. They are:-

(a) Translation from the German language with particular reference to the usage of 1933-1945;

(b) Preservation of photographic plates and their authentication;

(c) Operations by and against Muslim fundamentalist terrorist body known as the Hizbollah;

(d) Organised attempts by pressure groups in Britain and internationally to suppress discussion on controversial matters on recent history.

Without accepting that any of these areas (in particular (c) and (d)) relate to the issues, we do think there is some way of accommodating both our views. Certainly, (a) (German language) and (c) (Hizbollah) can be dealt with by experts from among the disciplines we have identified above, namely historians of Germany and political scientists. We have no objection to you calling expert evidence in relation to (b) (the preservation of photographic plates). As to (d), we simply do not understand the category. What issue does it go to in the pleadings? From which discipline would the expert be called to give evidence?

We trust that you have found this analysis helpful and that this correspondence may shorten the time required to debate this matter in front of the Court.

2. The issues set out in Mr Julius's first affidavit are taken from the pleadings. That is how relevance is defined. Please confirm whether you will be seeking to produce expert evidence in relation to the grounds set out in your Summons for Directions and, if so, explain their relevance.

3. You are not verifying your further lists by affidavit as a matter of courtesy, but under a Court Order. The obligation arises out of a complete failure by you to comply with the discovery rules. There is no question relating to our client's discovery. She will not be verifying her lists.

4. We agree with the option of Judge rather than Jury, but for different reasons than you.

Yours faithfully

Mishcon de Reya

September 28, 1998

 Dear Mr Libson

Deborah Lipstadt

I confirm receipt of your fax letter of today's date [panel below]. I expect to clarify the matters mentioned in your recent letter in discussions with my friends tomorrow, and I shall reply substantively to you by fax and mail on Wednesday morning.

Yours sincerely,

David Irving

28 September 1998

Dear Sir

PROFESSOR LIPSTADT

We attended before Master Trench this afternoon and enclose by way of service upon you a copy of the Summons endorsed with his Order of today's date. It reads "Ordered stay of para (2)(ii)(d) of Order dated 11 September 1998 until 2 October 1998 or further Order. Relist on 2 October 1998 for consideration of alteration of the said paragraph." Master Trench had read your letter of 24 September.

Master Trench also invited the parties to try and agree directions before the hearing on 2 October 1998 at which time the Summons for Directions will be relisted. In this respect, please could we have your comments on our previous letters.

Yours faithfully

Mishcon de Reya

September 29, 1998

 Dear Mr Libson

Deborah Lipstadt

I enclose by way of service, which please acknowledge, copy of a Summons [see next panel] returnable before Master Trench in Room 121 of the Royal Courts of Justice at 3 p.m., October 2, 1998.

Yours sincerely,

David Irving

LET all parties concerned attend Master Trench in Chambers in Room 121, Central Office, Royal Courts of Justice, Strand, London WC2A 2LL on Friday the second day of October 1998 at three p.m. in the afternoon on the hearing of an application by the Plaintiff for Orders that:

1. pursuant to R.S.C. 0.24, r.3 the Second named Defendant Deborah Lipstadt do make, file and serve an affidavit verifying her List of Documents served herein the 17th day of February 1998 and also her Supplemental List served herein the 9th day of September 1998. And that
2. unless the Second named Defendant Deborah Lipstadt do by 4:30 p.m. on Friday the 9th day of October 1998 furnish to the Plaintiff a copy of the docu-ment Numbered 500 in her List her Defence be struck out and the Plaintiff be at liberty to enter Judgment against her for damages to be assessed and for costs to be taxed. This application is made pursuant to R.S.C. O.24, r.11A. And that
3. the costs of this application be paid by the Second Defendant in any event.

Dated the 29th day of September 1998.

[Website NOTE: The significance of Document 500 cannot be identified under the Rules until it is read or referred to in open court.]

London, September 30, 1998

 Dear Mr Libson

Deborah Lipstadt

This letter replies to yours of September 17 and 25 in the above matter.

In my view only some of the issues between us require expert evidence. The remaining issues involve no more than a detailed analysis of my published works, raising questions of the plain meaning of English words, in respect of which the Court will need no expert evidence.

Following your terminology and numbering:-

"(a) Are you a Holocaust denier?"

It is my opinion that the Nazis and their allies persecuted huge numbers of Jews, possibly or even probably running into millions, to death; this is my public, published, and private position on the issue. It is, however, a matter for legitimate debate between historians exactly how many Jews were killed in Nazi occupied Europe, by what means, by whom and upon whose orders. Since, and because of, the publication of my book HITLER'S WAR in 1977 there has been an international debate among historians and scholars about the relative responsibility of Hitler, Himmler, and other Nazi and collaborationist leaders for this crime. This issue has still not been resolved some twenty years later. Moreover the number of victims remains a contentious issue.

What I have said about this is a matter of record and the Court will have to determine the plain meaning of the English words that I have used. I do not see that the Court requires expert evidence on the plain meaning of English words.

This being the case, it is for you to show, either that the above paragraph does not truthfully and accurately summarise my position, or else that the position as set out therein amounts to "Holocaust denial" as understood by the Court on the plain meaning of English words (which are not a matter of expert evidence).

I accept that to the extent that I have written or spoken about this issue in foreign languages, expert evidence may be led as to the true English meaning of the foreign words that I have used. I am of course not responsible for variations in meaning that may have arisen in translation by third parties. I accept responsibility for writings and speeches that I have made in foreign languages, so long as these are fairly transcribed and translated into English.

I reject any suggestion that expert evidence is relevant to this issue in any other regard.

"(b) Do you hold extremist views and have connections with extremist organisations?"

I do not propose to apologise for or justify my political opinions to you, save that I deny that I have ever publicly or privately expressed sympathy for the criminal ideologies of the NSDAP and of Hitler. I do not consider that, on my pleaded case, suggestions that I hold political views which differ from the prevailing ideology of the political class are relevant to this action. They cannot possibly justify your client's libels. Suggestions that I do sympathise with Adolf Hitler and/or the NSDAP must be justified as matters of fact and the plain meaning of English words, and once again expert evidence is irrelevant.

"(c) Do you distort, manipulate, misconstrue, etc., history?"

I make no claims to omniscience or infallibility. It is not sufficient for you to show that I have made errors of fact; to justify, you must show that I have knowingly and wilfully manipulated, misconstrued, and falsified history. This involves the proof of bad faith against me, which is entirely a subjective question, on which expert evidence can be of no assistance. Since 1977 new facts have come to light which have changed everybody's perceptions of history, and it is not sufficient for you to show that what I wrote in the 1960s and early 1970s differs from what is now known.

"(d) Are you an Adolf Hitler partisan?"

No. See (b) above.

You quote my proposals as follows:

"(a) Translation from the German language with particular reference to the usage of 1933-1945;

(b) Preservation of photographic plates and their authentication;

(c) Operations by and against Muslim fundamentalist terrorist body known as the Hizbollah;

(d) Organised attempts by pressure groups in Britain and internationally to suppress discussion on controversial matters on recent history."

In my view the areas in which expert evidence will indisputably assist are: (a), (b), and (c) as these raise technical questions; (d), which you are inclined to dispute, clearly goes to aggravation of damages, because a concerted conspiracy to injure is plainly more serious than the actions of one deluded individual.

Subject to the Court's approval I agree with the option of Judge rather than Jury.

Yours sincerely,

David Irving

Mishcon de Reya, Solicitors
• attn.: James Libson •
21 Southampton Row
London WC1B 5HS

David Irving vs. Deborah Lipstadt. October 2, 1998. High Court in London ordered the two defamatory Mozzochi affidavits filed against David Irving taken off the file. The writer's diary record.

London, Tuesday, October 13, 1998

COMPLYING with the Order, particularly the more detailed searches, is taking longer than we had anticipated.

We have 55 boxes, each of two cubic feet capacity, to search for each paper item; each box holds some three to four thousand pages of paper; there is no short way. I have two staff members working at it as well as myself, and we have worked methodically at it without break ever since the Order was made. The disruption to our normal routine, not to mention my writing obligations, has been substantial.

We have completed the tape list, the book list, the amendments to the previous list, and are currently searching for the remaining items of which you have requested discovery. The affidavit is ready for me to execute, but at this rate it will be the end of this week before we are through the tunnel.

Even then it is unlikely that the diaries will have been adequately processed to surface the materials you have asked discovery of: there are twenty to thirty thousand pages of diaries for the past two decades, all of which have to be examined. I am having the diaries mechanically scanned to make them machine-readable, but it all takes time. I regret the delay, and can only ask for patience.

David Irving