International Campaign for Real History

In the High Court of Justice

DJC Irving

- v -

Penguin Books Ltd and Deborah Lipstadt

In 1993 American scholar Deborah Lipstadt published Denying the Holocaust, product of a research contract funded by an Israeli agency.

British writer David Irving claims that it libels him. Lipstadt served a defence. This is Mr Irving's Reply.

Hyperlinks to Professor Lipstadt's Defence are distinguished by an asterisk*

1996.-- I.--Nº.1113

In the High Court of Justice






-- and --



First Defendants


Second Defendant



Reply to Defence of Second Defendant


1. Save insofar as it consists of admissions or as is expressly admitted below the Plaintiff joins issue with these Defendants on their Defence.

2. Further or in the alternative it is denied that the said words were fair comment or that the facts relied on are true.

3. In publishing the words set out in para. 8 of the Statement of Claim the First and Second Defendants were actuated by express malice. The Plaintiff will also rely against the First Defendant upon the malice of the Second Defendant as hereinafter set out.


The said Work to the whole of which the Plaintiff will refer was malicious in tone form and content in its references to the Plaintiff.

Further or in the alternative the First Defendants already published in the jurisdiction of this Honourable Court a work entitled Fascism for Beginners in which appear two caricatures by one Litza Jansz who describes herself as an unrepentant socialist, the first of which caricatures depicts the Plaintiff (at page 165) wearing eyeglasses in the shape of Nazi swastikas and the second (at page 166) depicts the Plaintiff as the Nazi dictator Adolf Hitler.

As the Plaintiff is aware the Second Defendant has on repeated occasions vilified him in articles and in a campaign of lectures delivered at locations around the world, including Atlanta, Georgia; Australia; and New Zealand, while denying him any chance of defending his name by refusing inter alia to appear on lecture platforms or on television programmes if the Plaintiff was also invited to attend to defend himself.

Despite the premises and despite the Plaintiff's historical research materials having been made available for general study in the Bundesarchiv Koblenz (German Federal Archives) and in the Institute of Contemporary History in Munich, which fact is well known, and although the Plaintiff is well known for providing every assistance to and answering the queries of his colleagues, regardless of their attitude to his works, the First and/or Second Defendants recklessly and without caring whether the facts in the Work were true or false and for the purposes of personal pecuniary gain published the same.


Hitler's WarFurther or in the alternative the Defendants made no reference to the Plaintiff's well-known biography HITLER'S WAR either as published in 1977 or in the amended text published in 1991 to which the Plaintiff will refer at the trial of this action, nor any reference to any of the Plaintiff's other works, which passages contained detailed accounts of the Nazi extermination of the Jews which show that he is not a 'Holocaust denier' as falsely averred in para. 12 of the Defence. The Plaintiff notes that in GÖRING. A BIOGRAPHY, at pages 346-9 he referred to the cover-up of what was really happening, and he notes that the Index to the said book has the entry, 'Jews, mass extermination of, 343-9, 469, 487, 489, 499, 502.'

The 1991 edition of HITLER'S WAR has inter alia the following references to Hitler and the Jews: role in Final Solution, 17-21; analysis of his antisemitism, 126-17; threats to Jews, 150-1; Berlin deportations, 407; deportations to east, 425-6; concentration camps, 466, 754; demands restraint, 536; extermination programmes, 426, 427, 463-7, 814; Himmler's call for extermination, 590; massacres in Russia, 44, 809. Even the well known Rommel biography by the Plaintiff, THE TRAIL OF Rommel bookTHE FOX, has an above-average number of references to the Jews: Rommel ignoring 'Hitler's order to execute captured members of the Jewish brigade,' at page 5, with the text of the said Führer Order at page 177; and other references at pages 25, 32, 42, 329 (Rommel learns of the 'massacres of Jews and others in the east'), and 346.


The Plaintiff is reputable and is an historian. The allegation* that he is neither is denied. The term historian is not reserved for those with academic qualifications, but is earned as much by acclaim or accolade as by academic degree. His books have been published by the world's most reputable publishers since 1963, and still are, most if not all of whom have acclaimed him as an historian. Those publishers include, but are not limited to, Messrs. Penguin Press / Allen Lane; and Viking-Penguin Inc., New York, both evidently companies related to, if not identical with, the First Defendants. Even in their abovementioned publication Fascism for Beginners the First Defendants refer to 'the British historian David Irving' as being 'prominent among the academics' to whose views it takes exception. His work is acclaimed by other historians of impeccable qualifications including the British official historians. Professor Sir Frank H Hinsley, in his multi-volume British Intelligence in the Second World War: Its Influence on Strategy and Operations (HMSO, Cambridge, 1979-84) cites the Plaintiff's works as primary sources. At the trial of this action the Plaintiff will introduce scores of newspaper articles by British and international experts which treat both him and his writings with distinction. Even the Board of Deputies of British Jews, the most reputable representative body of British Jewry since 1750, wrote in a secret intelligence report on Mr Irving in 1991: 'The book HITLER'S WAR however was far more than a simple denial of Hitler's role. It was thoroughly researched and employed a variety of themes. . . It also confirmed Irving's reputation as one of the world's most thorough researchers and an exciting and readable historian.'




(i) It is denied that the Plaintiff has denied the Holocaust; it is denied that the Plaintiff has denied that gas chambers were used by the Nazis as the principal means of carrying out that extermination; they may have used them on occasion on an experimental scale, which fact he does not deny.

(ii) It is denied that the Plaintiff holds extremist views. He has on occasion taken issue with both Faurisson and Zündel and with their views, and they have taken issue with him.

(iii) It is denied that the Plaintiff is driven by an obsession with Hitler. He has been criticised for marginalising Hitler in his recent biography of Dr Goebbels. He has written books in which Hitler does not figure at all. He has spent twenty years researching a wartime biography of Mr Churchill. It is denied that the Plaintiff distorts, manipulates, and falsifies history either in order to put Hitler in a more favourable light, or at all.

The boxes of microfiches in Moscow(iv) It is denied that without permission the Plaintiff permanently removed certain microfiches of Goebbels' diaries from the Moscow archives; the temporary removal of some microfiches was effected with the understanding and/or express permission of the archival authorities, and the microfiches were on each and every occasion properly cared for and without exception returned intact and undamaged to the archives, as staff members of The Sunday Times and others involved in the operation will confirm. It is denied that the Plaintiff lied and/or exaggerated the position with regard to the unpublished diaries on microfiches of Goebbels contained in the Moscow archives and used by him in the Goebbels book, or at all, as his correspondence with The Sunday Times and published references in his Goebbels biography will show.

(v) It is denied that the Plaintiff is discredited as an historian and user of source material, and that there was an increased risk that he would for his own purposes distort, and manipulate the contents of the said microfiches in pursuance of his said obsession, or at all.

(1) It is denied that these alleged quotations from speeches* by the Plaintiff are either authentic, complete, properly transcribed, or presented in their complete context.

(i) This alleged quotation* is not admitted for the reasons as above set out. The alleged components of the paragraph seem to bear no relation to each other.

(ii) This alleged quotation* is not admitted for the reasons as above set out. The alleged paragraph has been maliciously bowdlerised by the reporter and the various arguments offered have been condensed beyond all recognition.

(iii) This alleged quotation* is not admitted for the reasons as above set out. The 'Holocaust industry' is a quotation from a rebuff delivered by the then Chief Rabbi Sir Immanuel Jacobovits in a lecture in Jerusalem. The Germans have paid 80 billions deutschmarks (about £28 billion) in restitution for the persecution of the Jews. U.S.taxpayers have also paid substantially in support of the state of Israel.

(iv) -- (vi) These alleged quotations* are not admitted for the reasons as above set out.

Göring book(2)
(i) The Plaintiff has at no time denied* that the Nazis established concentration camps throughout their territories. In GÖRING, A BIOGRAPHY, he wrote in detail of the establishment of these camps. In THE MARE'S NEST he reported on the use of concentration camp slave labour for V-weapons production. In HITLER'S WAR and GOEBBELS. MASTERMIND OF THE THIRD REICH he reproduced an unpublished photograph of a trainload of Jews arriving at Riga bound for concentration camp.

(ii) The Plaintiff has at no time denied that the murder of the Jews began in about June 1941 when the Germans invaded the Soviet Union, or that hundreds of thousands of Jews were shot to death.

Mare's NestIn HITLER'S WAR at pages 270-1 (first edition, 1977) and at pages 380-1 (revised edition, 1991) he reported the Hitler/Frank/Rosenberg meetings on killing the Jews in June 1941. In GOEBBELS. MASTERMIND OF THE THIRD REICH he reported in detail the mass shootings on the eastern front as set out above. In his public lectures all over Europe and Australia and North America he described these shootings in such excruciating detail that there were audience protests, French revisionist writer Robert Faurisson labelled him a traitor who had fallen for fake documents, and neo-Nazis labelled him a Trojan Horse, in for example the extreme right-wing Swiss journal Eidgenoss dated April 28, 1990 ('Trojanischer Revisionismus des Herrn Irving').

(iii) The Plaintiff is not aware of any authentic wartime archival evidence for the allegations raised in this paragraph* by the Defendants. In the case of Auschwitz-Birkenau the Plaintiff is troubled by the refusal of the authorities to call for site examinations, forensic tests and other investigations, the more so since documents in the National Archives indicate that equal tonnages of Zyklon-B pesticide granules were delivered to Auschwitz and Oranienburg camps, at which latter camp nobody has ever suggested that gas chambers existed, and to camps in Norway, and since documents have now been found in the Auschwitz files held in former Soviet archives indicating that Auschwitz prisoners were actually released to the outside world again upon completion of their sentence which seems incompatible with the character of a top-secret mass extermination centre.

(iv) Chelmno. The Plaintiff is not aware of any authentic wartime archival evidence for the allegations raised in this paragraph by the Defendants, other than the sources used by him in referring to the alleged liquidation of 152,000 Jews at Chelmno on December 8, 1941 in HITLER'S WAR, 1991 edition, at page 426.

Eichmann. 1940(v) Auschwitz-Birkenau. The Plaintiff is not aware of any authentic wartime archival evidence for the allegations raised in this paragraph by the Defendants. Notwithstanding that the Defendants assert that it had four operating gas chambers in use, Adolf Eichmann, writing privately in 1955-6 about his inspection visits to Auschwitz, was never shown them (although he was shown an open-air pit with cadavers burning in it).

Auschwitz commandant Rudolf Höss reported daily to his superiors in Berlin in top secret SS cipher on prisoner statistics. From the spring of 1942 to February 1943 these daily signals were read by British codebreakers. They reported the number of inmates, the number of arrivals, and the 'departures by any means' -- primarily deaths, according to British Intelligence; the signals also distinguished between Jews, Poles, other Europeans and Russians. 'The returns from Auschwitz . . . mentioned illness as the main cause of death, but included references to shootings and hangings. There were no references in the decrypts to gassing' (Professor Sir Frank H Hinsley et al., British Intelligence in the Second World War: Its Influence on Strategy and Operations, Cambridge, 1979-84, 3 vols., vol. ii, appendix, page 673).

The Defendants have not explained what became of the one million cadavers which they claim were produced by killing operations at Auschwitz.

(vi) Belzec, Sobibor and Treblinka. The Plaintiff is not aware of any authentic wartime archival evidence for the allegations raised in this paragraph by the Defendants. Aktion (Operation) Reinhardt was named after Staatssekretär Fritz Reinhardt, the civil servant in the Reich finance ministry in charge of exploiting the assets of deceased and murdered Jews and other concentration camp victims. It is denied that Aktion Reinhardt was itself an extermination operation -- or that it was named after the assassinated Reinhard Heydrich.

It is denied that diesel engines can be used for killing operations. These engines exhaust non-lethal carbon dioxide (CO2), and only minute quantities of toxic carbon monoxide (CO). These howlers typify the flawed historical research into 'the Holocaust' even now, fifty years after the tragedy. The alleged murder statistics raise the same questions about body-disposal as voiced in 2 (v) above.

(i) A certificate (Auskunft) issued by the Public Prosecutor General at the Federal Court in Berlin, Germany, as recently as December 20, 1994, records that there is no criminal record in the Central Criminal File in Berlin against the name of the Plaintiff.

(ii) It is denied that these alleged quotations from the public lecture delivered by the Plaintiff in Munich on April 21, 1990 are either authentic, complete, properly transcribed, or presented in their complete context. The Plaintiff admits that he delivered a one-hour lecture, to the whole of which speech he will refer at the hearing of this action. It is admitted that in separate parts of that lecture he uttered the following sentences or phrases:--

(a) Meanwhile, we now know, and I need mention this here only by way of footnote, that there were never any gas chambers at Auschwitz.

(b) Meanwhile, we believe that, just as the gas chamber which the Americans built here at Dachau in the first days after the war was a fake, the gas chamber structures which you can now see as a tourist at Auschwitz were erected by the authorities in Poland after World War Two.

(c) For the German taxpayers have had to pay around sixteen billion deutschmarks as a punishment for Auschwitz.

(d) For a fake.

All of the above remarks are true.

(iii) In violation of Germany's own constitution, and of the Plaintiff's rights to freedom of opinion and speech as prescribed in the United Nations Charter of Human Rights to which Germany, the United Kingdom and most civilised nations are signatory, on July 11, 1991 the Munich magistrate's court fined the Plaintiff the sum of 7,000 deutschmarks in absentia for uttering the above statements, holding that he had committed offences under sections 185, 189, 194 subsections 1, 2, 52 of the criminal code. No such offences are known to the British penal code, let alone under the laws of the United States, and it is vexatious, prejudicial, and frivolous of the Defendants to seek to rely on them.

(iv) The Plaintiff's appeal was heard by the District Court in Munich on May 5, 1992. It was a political trial. Judge Thomas Stelzner, aged 30, allowed a violent demonstration inside the court building. Riot in courtPhotographs of the demonstrators manhandling the Plaintiff were distributed around the world. The court denied all applications by defence counsel, including their request for leave to call as defence witnesses Dr Franciszek Piper, Polish director of the Auschwitz state archives, and other experts who agreed that the gas chamber shown there to tourists was of post-war origin. (The Polish authorities have now admitted that the structure was built in 1948, three years after the war ended). Every defence document was also disallowed by the court. The court ruled that the gas chambers were offenkundig -- a matter of public record of which the courts had to take judicial notice and to which they allowed no contrary debate. Protesting at the court's obstructionism, the Plaintiff's two eminent German defence counsel walked out of the courtroom in disgust; their action was subsequently upheld by the country's Law Society.

Speaking in German, the Plaintiff told the judge, according to The Daily Telegraph: 'We both have our duties. My duty as an historian is to establish the truth. Your duty is also to establish the truth -- but you have a problem in Germany.' By this, he meant the political principle laid down by the ministry of justice that all facts relating to the Holocaust are to be regarded as offenkundig -- inviolate, and not open to argument by defence counsel.

In his closing speech the Plaintiff also addressed these words to the judge and woman prosecutor: 'I am nearly at the end of my career as an historian. Quite simply, I am running out of words. But you both, judge and prosecutor, are still young: you are on the threshold of your careers, and it is clear to me that you have no alternative but to stick to the Federal German version of the truth.'

The widely criticised political precedent of declaring Offenkundigkeit (matter of public record) was finally and expressly overruled by the German judge hearing the identical charges against Erhard Kemper in Münster on December 4, 1996; the judge ordered Kemper's acquittal on identical charges, and payment of his costs from the public purse.

Had such a precedent existed in 1992, the Plaintiff submits, it is unlikely that a properly consituted court in Munich could have convicted him. Citing his obstinacy, the Munich court increased the fine on him to ten thousand marks.

David Irving, Hajo Herrmann, Karl Schaller
Mr Irving (left) with his defence counsel Herrmann and Schaller

(4)* Subject to the reservations as set out above, para. 3 (iii), as to admissibility, it is admitted that on January 13, 1993 (not on January 14, 1994 as falsely averred by the First Defendants) the 25th Criminal Chamber of the Regional Court of Munich upheld the conviction on the appeal of the Plaintiff, and increased the fine to thirty thousand deutschmarks, or about £12,000 at present day exchange rates.

The emotional language in which the judgment was couched, to the whole of which the Plaintiff will refer, makes plain that this was a political judgement.

(5)* The Plaintiff is not affiliated to the Institute for Historical Review ('IHR') in Los Angeles. He denies that it is ultra-right wing, pseudo-academic, or attractive to neo-Nazis, anti-Semites and racists. The members of its Board hold established academic qualifications. The Plaintiff has on occasion taken issue with the IHR, arguing for example that it should not accept articles for publication under noms-de-plume, and that it should widen its horizons to other conflicts and historical debates. Its lecturers have included an American Pulitzer-prize winning historian, a former official of the Central Intelligence Agency, a Japanese general; future lecturers are to include James Bacques, the leftwing liberal Canadian writer, and John Sack, a Jewish investigative author. The Plaintiff has lectured to IHR audiences about five times over fourteen years: on Pearl Harbor; on the Adolf Eichmann Papers and the Final Solution (having obtained these papers in Buenos Aires, he donated them to the German government); and on the Goebbels Diaries and Kristallnacht.
(i) In September 1983 the Plaintiff lectured to the Vth IHR conference. The admissibility of the rest of this paragraph is denied.

(ii) In February 1989 the Plaintiff lectured to the IXth IHR conference. The admissibility of the rest of this paragraph is denied, apart from the purported quotation from a speech, to the whole of the text of which the Plaintiff will refer at the hearing of this action.

(iii) In October 1990 the Plaintiff lectured to the Xth IHR conference. The admissibility of the rest of this paragraph is denied.

(iv)* In lecturing to the Xth IHR conference in October 1990 the Plaintiff made remarks of which those quoted appear to be flawed extracts (the word correspondence at the foot of page 9 should read correspondent; and the word tests on page 11 should read taste; and the word flat on page 11 should read flag; and the word placard on page 11 should read plaque). The Plaintiff will refer to the whole text of this lecture, including those passages omitted by the Defendants, at the hearing of this action. The admissibility of the closing paragraph (The First Defendants . . . following below) is denied.

(v) In October 1992 the Plaintiff lectured to the XIth IHR conference. The admissibility of the rest of this paragraph is denied.

(6)* It is admitted that: Mr Ernst Zündel, a legal resident of Canada, was charged in 1983 and convicted in 1985 of spreading "false news" under the little-used and archaic section 177 of the Canadian criminal code (a section written in 1887, based on a 12th century English law); in January 1987 the Ontario Court of Appeal allowed his appeal. At a new trial, he was reconvicted and sentenced to nine months. He appealed unsuccessfully to the Ontario Court of Appeal. He then appealed to the Supreme Court of Canada. On August 27, 1992 the Canadian Supreme Court allowed his renewed appeal, holding that this section of the criminal code violated Canada's Charter of Rights and Freedoms, section 2(b) thereof protecting the rights of minorities to express even unpopular views. Despite calls in August 1992, in March 1993, in 1995 and again on March 14, 1996 for Mr Zündel's further prosecution, the AttorneyGeneral's Department of Ontario refused to do so and announced on March 15, 1996 that it had also intervened and quashed charges filed against Mr Zündel by a private Canadian citizen. Although his opinions remain unpopular, Mr Zündel has remained free of criminal convictions in Canada to this day. The admissibility and relevance of the rest of this paragraph is denied.

(7) The Plaintiff was accepted by the District Court in Toronto as an expert witness to give evidence on World War Two history. He testified under oath from April 22 to 26, 1988. The Plaintiff will refer to the verbatim record of his sworn expert testimony in the Zündel action, and to the newspaper coverage of the same, at the trial of this action. The admissibility of the concluding sentence in square brackets is denied.

(8)* It is denied that Mr Frederick A Leuchter had no expertise as stated. When defence counsel were seeking an expert witness on gas-chamber construction, they approached the governors of U.S. penitentiaries where such devices were operated for execution purposes; upon their recommendation of the said Mr Leuchter, a professional consultant who had routinely and for a fee advised these penitentiaries on electric-chair and gas-chamber execution procedures and safety precautions, the defence counsel hired him as an expert trial witness. The Plaintiff submits that whether or not Mr Leuchter was licensed as an engineer in Massachusetts is irrelevant; he was an expert, and was accepted as such by the Toronto court. The court did not however admit into evidence his affidavit on the forensic tests which he had commissioned on material samples which he took from the Auschwitz site, ruling that it would take judicial notice of the holocaust. The events in June 1991 are irrelevant to this action; they were in the submission of the Plaintiff part of the merciless campaign conducted against Mr Leuchter in retribution for his witness testimony, a campaign which would have attracted sanctions as a contempt of court or as an attempt to pervert the course of justice if conducted within the jurisdiction of this Honourable Court.

The Defendants do not mention that the expert portion of Leuchter's investigation, namely the quantitative and qualitative chemical analysis of the samples taken, was delegated to Professor Roth, professor of chemistry at Cornell university in the United States, whose forensic expertise is unchallenged.

(9)* It is admitted that the Plaintiff published (on June 23, 1989) under his Focal Point imprint the British Commonwealth edition of Mr Leuchter's affidavit. It was an important historical document. In the foreword the Plaintiff voiced his own measured concerns about what he saw as methodological flaws (quoted at page 16 of the Defence: 'I myself would, admittedly, have preferred to see more rigorous methods used in identifying and certifying the samples taken for analysis. . .') It is the Plaintiff's view that the entire global campaign to vilify him and to destroy his livelihood, including but not limited to the publication by the Defendants of the Work complained of, is a campaign of retribution for his witness evidence in 1988 and for his part in publicising Mr Leuchter's affidavit in 1989.

The Plaintiff will establish at the hearing of this action that subsequent forensic tests were carried out by Polish authorities on the Auschwitz site, in an attempt to disprove the Leuchter affidavit; but that in each case the results, of which the Plaintiff has a copy, were suppressed. The results broadly confirmed Mr Leuchter's affidavit.

(10)* When eighty-eight (not ninety-two) British Members of Parliament table an Early Day Motion, this is their privilege -- in every sense of the word: unlike the Plaintiff and the Defendants in this action, they are operating beyond the reach of the Defamation Act, and they can peddle what lies they please. It is denied that such a motion can be truthfully represented as the will of the House of Commons, since it is neither debated nor voted upon. These MPs signed their Motion three days before the affidavit was even published; none of them had even seen it.

(11)* It is admitted that the Clarendon Club, that is in effect the Plaintiff, invited Mr Leuchter to lecture to a large public audience in Chelsea Town Hall on November 15, 1991. Concerned about his revelations, the Board of Deputies of British Jews conducted a vigorous clandestine campaign to prevent Mr Leuchter's entry to Britain. He entered Britain legally and openly at Dover, having his passport stamped by Immigration officers as he did so. After protests from unknown quarters, police constables arrested Mr Leuchter on the stage in the presence of the audience and ITV television cameras, and deported him two days later to the United States. The Plaintiff addressed the meeting, introducing Mr Leuchter as their guest speaker. The rest of the concluding sentence and its admissibility are denied.

Return to top || | Index to this Case || | Plaintiff's Claim || | Defence ||   Continue >>>

To Order Books | Auschwitz Index | Irving Index | Irving Page | Irving Book-List | Action Report | Other FP Authors
©Focal Point 1998  e-mail:  write to David Irving