| Marvel too at the supporting affidavit procured from the ADL's Coalition of Human Dignity (which employs dignified mobs of Oregon spitters) |

I, ANTHONY ROBERT JULIUS of 21 Southampton Row, London WCIB 5HS MAKE OATH AND SAY as follows:-

I am a consultant to 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 own knowledge save where appears otherwise from the context.

2. I swear this affidavit in support of Professor Lipstadt's application against the Plaintiff ("Mr. Irving") for an order in the terms set out in the Summons.

Background to the case

3. Professor Lipstadt is a scholar of international renown. She is the author of two books: one on an aspect of Holocaust history, and the other - "Denying the Holocaust. The Growing Assault on Truth and Memory" (the "book") - on an aspect of Holocaust historiography (or more precisely, on an aspect of Holocaust pseudo-historiography). Professor Lipstadt occupies the Dorot Chair in Modern Jewish and Holocaust Studies at Emory University in Atlanta, Georgia. She has a Presidential appointment to the United Stages Holocaust Memorial Council and she is an advisor to Secretary of State Albright on issues of religious persecution abroad.

4. Mr Irving is suing Professor Lipstadt in libel over passages about him in the book which is published by the First Defendant. There is now produced and shown to me, marked "ARJ1", a copy of the book. As can be seen from the review extracts on its covers, the book was well received. The references to Mr Irving are at pages 8, 14, 111, 161-3, 170, 179-181, 213, 215, 221 and 232-4.

5. There is now produced and shown to me exhibit "ARJ2". It is divided into the following sections:

(1) The Pleadings (pages 1-117)

(2) The List (pages 118-193)

(3) Correspondence on Mr Irving's discovery (pages 194-220)

(4) Other correspondence (pages 221-234) and documents referred to in my Affidavit.

(5) A copy of the annex to the Summons (the "Annex") that summarises in six categories the defects in Mr Irving's discovery (pages 235-281)

(6) Documents relating to category 1 defects (pages 282-392) irrelevant documents.

(7) Documents relating to category 2 defects (pages 393-838): missing documents.

(8) Documents relating to category 3 defects (pages 839- 1354): incomplete documents.

(9) Documents relating to category 4 defects (pages 1355- 1361): offensively described documents

(10) Documents relating to category 5 defects (pages 1362-1401): documents whose provenance is questioned.

(11) Documents relating to category 6 defects (page 1402): miscellaneous documents.

I identify the categories in greater detail in paragraphs 14 to 27 below.

The relevant issues

6. The book is a survey of Holocaust deniers, most of whom are associated with political groupings on the Far Right. By manipulating documents, refusing to acknowledge the authenticity of other documents and testimony, and by a great deal of simple mendacity, they seek to deny the reality of the Nazi genocide of the Jews. The book puts Mr Irving in this company for the following reasons:

• Contrary to the truth that there was a systematic policy to destroy European Jews, Mr Irving asserts there was no such policy.[1]
  
• Contrary to the truth that gas chambers were used to kill Jews, Mr Irving asserts there was no widespread use of gas chambers and there were no gas chambers at Auschwitz.[2]
  
• Contrary to the truth that between 4.8m and 6.2m Jews were killed in the Holocaust (There is uncertainty within these parameters because of the difficulty of recording exact numbers. The figures are based, inter alia, on records of Jews living in Europe before the Second World War and German wartime documents.) Mr Irving asserts "only" 600,000 were killed.[3]
  
• Contrary to the truth that Hitler knew of the destruction of the Jews, Mr Irving asserts Hitler was ignorant of the destruction.[4]

7. The principal relevant issues (which follow the pleaded meanings at para 9 of the Statement of Claim and para 6 of the Defence) I identify are:

• Mr Irving is a Holocaust denier;
  
• Mr Irving is an ideological extremist;
  
• Mr Irving is an Adolf Hitler partisan and is driven by the need to exculpate Hitler;
  
• Mr Irving, without permission, removed certain archival material relating to Goebbels' diaries from the Moscow archives and subsequently damaged some of that material;
  
• Mr Irving is discredited as an historian.

Discovery

8. The Plaintiff served the List on 13 January 1998 (pages 118-193 of ARJ2). Inspection of the List took place from 10 to 13 March 1998 (Tuesday to Friday) inclusive, and on 15 March 1998 (Monday).

9. It was evident from a mere reading of the List, well before actual inspection, that it was defective. My firm wrote to Mr lrving on 20 February 1998 (pages 194-196 of ARJ2) and 2 March 1998, (page 197 of ARJ2).

10. During the several days of inspection much else that was defective in the List was disclosed. I refer to my firm's letter of 23 March 1998 (pages 199-213 of ARJ2).

11. Finally, on an examination of Mr Irving's books (some of which are disclosed and some of which are not - all should be), it was evident that there were still further documents which he either has, or has had, in his possession, custody or power which have not been disclosed. I refer to my firm's letter of 28 April 1998 (pages 216-220).

12. In a letter dated 2 April 1998 (page 215 of ARJ2) the various objections set out at length in previous correspondence were summarised in four categories:

(1) The List itemises a considerable quantity of irrelevant documents i.e. documents that do not go to any of the relevant issues ("category 1 defects").

(2) The List omits whole classes of relevant documents ("category 2 defects").

(3) The List contains incomplete series of documents and documents which are in themselves incomplete ("category 3 defects").

(4) The List describes documents in a misleading and offensive manner ("category 4 defects").

I would now add two further categories:

(5) Some of the historical documents are inadequately referenced in the List or provide insufficient detail as to their provenance for their context and/or authenticity to be established ("category 5 defects").

(6) There are some other miscellaneous defects ("category 6 defects").

Each category is addressed below.

13. The number of enquiries in the discovery correspondence has reached 256. Mr Irving has not responded properly to a single one. In order to assist the Court I have organised the enquiries into the six categories of defects set out above. Each category of defect is set out separately in the Annex. Not every one of the 256 defects has been listed in the Annex. In some cases (particularly category 5 defects) we have ourselves managed to locate missing or inadequately referenced documents.

Category 1 defects irrelevant documents-Part I of the Annex

14. Some of these documents appear to be relevant to another piece of litigation, one between Mr Irving and the historian and journalist Gitta Sereny. For example, items 1798 and 1801-1803 inclusive of the List (pages 360-364 of ARJ2) are correspondence between the Plaintiff and Andrew Page, described as "Solicitors for the First Defendant." The First Defendant in this action is Penguin Books Limited, for whom Andrew Page, so far as I am aware, has never acted. Mr Page used to act however for Ms Sereny.

15. The other documents listed in Part 1 of the Annex do not go to any relevant issue. While my colleagues and I were able to identify some of these irrelevant documents when first reading the List, it was impossible to identify some of the others without undertaking the expensive exercise of inspection, and in some cases translation too, of the documents. Time and therefore costs have been wasted.

Category 2 defects: missing documents--Part 2 of the Annex

16. Mr Irving has omitted a large number of relevant documents. (Part 2 relates to classes of missing documents: Part 3 to incomplete series of documents.)

17. The key area where there are relevant, missing documents relates to relevant issue 2 - Mr Irving's ideological extremism. There is, I believe, a sizeable amount of documentation that has not been disclosed at all that is in Mr Irving's possession, power or control. This belief is based on:-

• documents that have been disclosed that demonstrate such connections;
  
• documents that I know exist but have not been disclosed; and
  
• the affidavit of Jonathan Mozzochi sworn herein that describes Mr Irving's connections with the American Far Right.

[For our Website's report on Mr Mozzochi click his pic:]

18. At pages 393-499, 618-729 and 754-787 of ARJ2 are various documents downloaded and printed from Mr Irving's website. Among these are:

• transcripts of lectures Mr Irving has delivered to the Institute of Historical Review ("IHR"), a Far Right pseudo-historical body (pages 397-422 and 436-453). IHR propagates the views of Far Right and neo-Nazi ideologues. It gives them an ostensibly authoritative platform through seminars and publications. Mr Irving admits to having lectured to the IHR on five occasions (paragraph 6(5) of the Reply) but has only disclosed the transcript of one such lecture (item 1959 of the List)
  
• a lecture given by Mr Irving to a "Clarendon Club" in September 1992 (pages 426-435).

19. Additionally, Mr Irving has connections with other Holocaust deniers and Far Right organisations, as listed below. In some cases, Mr Irving has given only limited discovery of documents connecting him to these organisations/people. The Annex lists them. I set out below a few sentences establishing their character and their connection to Mr Irving.

• Ernst Zundel (see pages 153-167 of the book): a German citizen with immigrant status in Canada: the author of "The Hitler we Loved and Why", which concluded with a celebration of Hitler's spirit that "soars beyond the shores of the White Man's home in Europe. Where we are, he is with us. WE LOVE YOU ADOLF HITLER." (page 158 of the book). Mr Zundel was prosecuted twice in Canada for Holocaust denial.[5] Mr Irving gave evidence for Zundel at the second trial (paras 6(7) of the Defence and the Reply). Limited correspondence has been disclosed (see, for example, items 1037 and 1039 of the List, at pages 500--504 of ARJ2).
  
• Fred Leuchter (see pages 162-182 of the book): the American author of the so-called "Leuchter Report", a pseudo-scientific "proof" that there were no gas chambers at Auschwitz. Mr Irving has published this in England and has written

an introduction to it (see items 1164, 1210, 1211 and 1212 of the List at pages 118 - 193 of ARJ2). Zundel published the Leuchter Report in Canada. Leuchter was called as an expert witness in the second Zundel trial (on Mr Irving's suggestion that an American prison warden who had performed gas executions should be called - see page 162 of the book).[6] Mr Irving's association with Leuchter is set out at paras 6(7) and (8) of the Defence and the Reply.

• Arthur Butz (see pages 123-136 of the book): the American author of a notorious book on Holocaust denial "The Hoax ofthe Twentieth Century" with whom Mr Irving has corresponded (see items 1178 and 1180 of the List at pages 600-601 of ARJ2). Butz, unlike most deniers before him, does not deny that some Jews were killed. He also, like Mr Irving, says the Jews invented the Holocaust to further Zionist ends (page 125 of the book);
   
• Mark Rassinier (see pages 51-65 of the book): one of the first Holocaust deniers and an influence upon. among others, Faurisson. Mr Irving appears to have written an introduction to one of Rassinier's books (see document 1191 of the List at pages 581-589 of ARJ2). No other documentation, however, has been disclosed.
   
• Robert Faurisson (see pages 160-176 of the book): the author of a number of books denying the Holocaust. Faurisson was convicted in France for the libel of denying the Holocaust (where it is a criminal offence). Faurisson has claimed that the "so-called gassing" of the Jews was a "gigantic politico-financial swindle whose beneficiaries are the State of Israel and International Zionism" (paragraph 6(5)(i) of the Defence). Faurisson gave evidence at both Zundel trials, the second one with Mr Irving. Mr Irving and Faurisson together suggested approaching Leuchter to give evidence for Zundel at the second trial (page 162 of the book).[6] Mr Irving shared a platform with Faurisson at the September 1983 and October 1990 IHR conferences. Mr Irving does not deny either that the Defence accurately describes Mr Faurisson's views or that he spoke at these conferences 

with him. The only letter in Mr Irving's discovery from Faurisson is item 1134 pages 590-591 of ARJ2), in which Faurisson calls the Holocaust an "absurd and popular thesis" and accuses Professor Martin Gilbert, the official biographer of Churchill, of falsification and invention.

• The Deutsche Volksunion ("DVU"): a Far Right German political party to which Mr Irving is connected (see paragraph 6(15) of the Defence). DVU was founded by Gerhard Frey who is Chairman of the party. Frey is a publisher of Far Right books and pamphlets in Bavaria. DVU's platform is explicitly racist. It publishes newspapers including Deutsche National Zeitung and Deutsche Wochen Zeitung which regularly feature articles denying the Holocaust (see pages 591A--591B of ARJ2 which are taken from an annual report on anti-Semitism published by the Institute for Jewish Policy Research and the American Jewish Committee). The DVU recently won 13% of the vote in local elections in Saxony. Mr Irving does not deny his connections with the DVU. He denies it is extremist (paragraph 6(15) of the Reply). Again, limited discovery has been given (see, for example, items 846, 847, 904, 907, and 1036 of the List at pages 592-597of ARJ2.
  
• Mark Weber (see pages 184 and 186 of the book (Weber) and pages 137-156 (IHR)): one of the founders of an organisation called CODOH (the Committee for the Open Discussion of the Holocaust Story) whose sole function is to propagate Holocaust denial. He is also one of the prime movers behind the IHR with whom Mr Irving corresponds to organise his talks (see, for example items 1371 and 1374 of the List at pages 598--599 of ARJ2);

20. The above is a selection of names taken from a fuller list of extremists and Far Right organisations with whom, and with which, Mr Irving has connections and which is set out in part 2 of the Annex. The List is based on our research into Mr Irving. It is not necessarily exhaustive. If there are other extremists and Far Right organisations with whom or which Mr Irving has connections, I also seek discovery of any documents in relation to them.

21. Mr Irving publishes an occasional bulletin called "Action Report". It is published about twice a year and copies are available on his website and also on the CODOH website. It would appear that Action Report is circulated to those of Mr Irving's supporters who contribute to the "David Irving Fighting Fund". Copies of the downloaded Action Reports, are at pages 618-729 and 754-787 of ARJ2. These reports and, no doubt, many others should have been disclosed in the List.

Category 3 defects: incomplete documents--Part 3 of the Annex

22. It is apparent from the documents disclosed and inspected that a large number of further documents remain undisclosed. Each document which is incomplete or which refers to a further, undisclosed document is set out in Part 3. The documents themselves are at pages 839-1354 of ARJ2.

Category 4 defects: offensively descrihed documents--Part 4 of the Annex

23. Several items in the list are described in a misleading and sometimes offensive manner. In particular, I refer to item 1842 on the List (see pages 1355--1361 ofARJ2), the letter dated 2 March 1998 and Mr Irving’s reply of the same day (see pages 197-198 of ARJ2).

24. 1842 lists Professor Robert Jan Van Pelt and Deborah Dwork's book: "Auschwitz 1270 to the Present" and annotates the description "final chapters confirm the gas chambers at Auschwitz which are shown to the tourists were built after the war". Professor Van Pelt attended at my office on 25 February 1998 and confirmed that (a) this annotation distorted grossly the book's conclusions and (b) he found it offensive. The name "Auschwitz" is used to refer to the complex of camps which includes Birkenau, the principal extermination site of the complex. The camp at Birkenau was opened in 1943, and was connected to the camp at Auschwitz by train line in 1944. The truth is one crematorium only (the one at the main site of Auschwitz not the 4 at Birkenau where most of the gassings took place) was rebuilt (I emphasise rebuilt) to a limited extent in order to demonstrate the true nature of the gassings: the chimney, some openings in the roof and three finnaces, were the subject of reconstruction. No reconstruction of the crematoria at Birkenau has taken place; no "gas chambers" at all have been "built". The camp has been left as it was when the war ended,

in ruins. Copies of the relevant pages of Professor Van Pelt's book are at 1355-1361 of ARJ2.

25. If evidence was needed of Mr Irving's (a) ideological commitment to Holocaust denial and (b) his methods, this small example would be sufficient. It wildly misrepresents a detail in support of a lie. It implies that Jews could not have been murdered by poison gas during the war because the buildings in which these murders took place did not exist. It puts the authors of "Auschwitz 1270 to the Present" in the camp of the Holocaust deniers.

Category 5 defects: documents whose provenance is questioned--Part 5 of the Annex

26. Many of the documents are of uncertain provenance. Three examples are:

Document 1: "November 22 1993: English translation of Ribbentrop note on meeting with Ramsay MacDonald, from Hoover Library Archives." One of the issues in the case is whether Mr Irving mistranslates documents and relies upon them out of their proper context. Professor Lipstadt needs to know whether the note itself is in English. If it is not, Professor Lipstadt needs to know where the original is, and the identity of the translator.

Document 8: "November 10-11, 1938: Index cards relating to source documents from D.I.'s card index on Hitler". Much of Mr Irving's research is summarised on a card index system. Under category 3, I seek discovery of all of the relevant index cards. In relation, however, to specific index cards listed it is important that Professor Lipstadt is able to identify the source document summarised, transcribed or translated on the cards.

Document 62: "December 10 1942: [D.I.'s copy of handwritten [Himmler-Vermerk on Hitler decisions] 6-700,000 French Jews to "abschaffen"]" It is impossible to tell from this description, or from the document itself, from which archive it comes. Part of the case is that Mr Irving manipulates sources. Professor Lipstadt needs to be able check the document in the archive to ensure that it is

accurately described and to see whether there are other documents that relate to it.

A full list is set out at Part 5 of the Annex with an identification in each case of the question Mr Irving needs to address.

Category 6: miscellaneous documents--Part 6 of the Annex

27. In addition to the above:

(1) Mr Irving has not listed every document that he made available on inspection, for example, those documents referred to at paragraph 172 of the 23 March letter (page 210 of ARJ2).

(2) Mr Irving has redacted the item 1336 on the List (at page 1402 of ARJ2) without explaining the grounds upon which he claims privilege for that part of the document.

Conclusion

28. In the circumstances, I submit that the List is too defective to be allowed to stand. I seek an order that Mr Irving be compelled to serve a substituted list (although I seek lesser orders in the alternative). I also ask the Court to order that any new list or further and better/specific discovery should be verified by affidavit. In making this submission, I have taken into account that Mr Irving represents himself. Nevertheless:-

(1) He is an experienced litigant.

(2) He has been repeatedly advised of his obligations.

(3) He has demonstrated by his conduct that he is not to be trusted.

29. Experienced litigant. Mr Irving has been involved in many legal actions. He was a Defendant in the Broome -v- Cassell litigation in 1971 and reported at [1971] 2 All ER 187. He has sued the Sunday Times over the arrangements he and the newspaper entered into about the serialisation of the Goebbels' diaries in 1992. He attempted to bring proceedings in libel against my client the Board of Deputies of British Jews in 1996 but was refused leave under the Limitation Act. He is currently suing Gitta Sereny and the Observer in libel.

30. He is, therefore, familiar with his discovery obligations. Indeed, in his talk to the Clarendon Club on 19 September 1992 to which I refer above (page 428 of ARJ2), Mr Irving clearly sets out his understanding of the discovery process.

"Discovery is the nastiest stage you get into in a High Court action because it's when you are required by law to open your innermost secrets, your innermost files and documents: I had to provide copies of all my telephone logs and private letters and diaries, and nobody can . . . I don't mind, because I've got an open conscience"

31. Advice on his obligations. I refer to my firm's letters of 20 February, 23 March, 2 April and 28 April 1998.

32. Not to be trusted. On the 18 March 1998 Mr Irving attended my firm's offices to inspect my client's documents. On that same day he posted two of those documents on his website. My firm wrote to him on the 19 March 1998 asking him to remove the offending items, which he did. However five days later he used another document obtained on discovery to make a threat of libel proceedings against the Board of Deputies. That letter was deliberately backdated to 18 March to give the appearance of being sent before Mr Irving had been wamed of his contempt.[7] I refer to pages 227-228 of ARJ2 which is a copy of the envelope in which the letter was sent, showing it was posted on 24 March 1998. The correspondence relating to this matter is at pages 229-234 of ARJ2. Since then, my firm has sought an undertaking from Mr Irving that he will not use

documents obtained on discovery in this action for any purpose other than this litigation. He has refused to give such an undertaking.

33. In the circumstances, therefore, I seek an Order in the terms set out in the Summons.

Notes

1. It is a grotesque distortion to say that Mr Irving asserts there was no such policy. [Return to Text].

2. Like a second-rate stage conjurer Julius refers to Auschwitz when it suits him, otherwise to Birkenau when it does not (paragraph 24 of his affidavit). [Return to Text].

3. It is a monstrous and offensive lie to state that Mr Irving ever said that "only" [in direct quotation marks] 600,000 people were killed. [Return to Text].

4. Mr Irving has repeatedly stated since 1977 that there is no wartime documentary proof that Hitler did know of "Auschwitz" - which is not quite the same thing; despite his 35-year-long standing offer of £1,000 for such proof, no proof has been produced. [Return to Text].

5. Julius omits to add that despite the best efforts of Canada's best Jewish brains, and notwithstanding several attempts by their leading prosecutors, Ernst Zündel was acquitted on all charges by the Canadian Supreme Court. [Return to Text].

6. This is a complete fabrication. Mr Irving had nothing whatever to do with the selection by Zündel's defence attorneys of the professional execution technology consultant Fred Leuchter as an expert witness. The first time that Mr Irving heard of, and met, Leuchter was when he himself arrived in Toronto to testify as an expert witness on Third Reich history in April 1988. [Return to Text].

7. It is easy to disprove this smear. Angry at finding (on March 18, 1998) a libellous Press Release issued by the Board of Deputies of British Jews on January 14, 1993, Mr Irving wrote that same evening to the Board's head honcho, Michael Whine, confidentially recommending him, in his own interests, not to repeat such torts. The letter's computerised date-and-time entry states clearly "London, Wednesday March 18, 1998, 11:09 p.m." It was not posted until March 25, because Mr Irving was overloaded with paperwork prior to his departure the next day on two consecutive two-month lecture tours of North America. [Return to Text].