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May 5, 2000 (Friday)

I WORK far into the night on the affidavit for today's hearing, and its exhibits. Finish it around 3:50 a.m.

Up at 7:30 a.m. to take Jessica to school. Aargh. Then taxi to the High Court (my one luxury). The Times runs the diary item very nicely.

The Hon. Mr Justice Gray

Court at 10:30 a.m. Courtroom 35, to fight Penguin's application for an order on costs. Penguin Books are represented by Miss Heather Rogers with Anthony Julius acting as her junior. All very sedate; I mistake Heather for a man without her wig. My eyesight really is going. Adrian, acting for the first time as my counsel, makes a very tough speech, brilliantly delivered, clearly the absolute master of Costs Law. When he uses the word "damnification," Judge Gray -- who looks very avuncular, sitting without wig or gown -- pulls him up puzzled, does not know the word, admits he learns something new every day. (Miss Rogers is thereupon careful to slip the word into her own speech after that). Adrian's expertise is intimidating for the Judge (who however will get to call the shots at the day's end).

Davies argues

  • as the article in The Bookseller, April 21, proves, Penguin UK Ltd were "maintained" by Pearson or Macmillan, were never at risk, and should in consequence not get one penny of their costs (they are claiming £2 million); and
  • I had offered to Penguin on two occasions in 1998 and 1999 to let them off the action entirely, for a token £500 paid to a charity, and did not ask for costs; so they cannot whine now; and on the basis of "proportionality", they are entitled to costs based only on that element. It is their own fault if they allowed their costs to rise to £2 million.

At very least he asks for an adjournment and Order that Penguin produce affidavit evidence on the point of who paid their bills. The judge is clearly not receptive to either idea; he shortly allows Miss Rogers to state baldly that she is now instructed by Davenport Lyons, Penguin solicitors, that they (Penguin Books Ltd) paid the bills, and he takes that mere assertion as sufficient evidence that there was no maintenance. And he does not address the proportionality issue, at least not in my presence. Gray does say some illuminating things however: he clearly finds the amounts paid to the experts (the bill for Prof. Hajo Funke's work alone has now risen to £140,000!!) and their previously anonymous helpers obscene, but he does not strike them out there and then, because Miss Rogers persuades him he cannot do it just like that. He also spots that the work of Prof. Richard Evans et al. was originally billed to Mishcon de Reya, Lipstadt's solicitors, so what are those disbursements doing in the Davenport billing folder presented to me?

Coffee at a Pret à Porter with Adrian and my instructing solicitor Sarah Rees of Goldsmiths. I leave at the lunch adjournment, as at 2 p.m. I have a group of eight US law students from Montana visiting with their professor, to discuss the Lipstadt case and great trials in history (Nuremberg etc.) at Duke Street. They make a jolly bunch and I address them from 2 to 3 p.m. interrupted by a crazy Oriental woman calling from Canada to order a book; after ten minutes of failure to comprehend, I give up.

Having once again had only three and a half hours' sleep, I hit the sofa. Almost at once Sky TV phones at 3:10 p.m. with the verdict: the Judge has ordered me to pay £150,000 in six weeks. Now that is a real prospect. [...] A journalist from The Guardian phones, and asks about my rumoured £300,000 fighting fund. Eventually, when he asks who is behind the Goldsmith's episode, who "they" are, I say: "I don't really want to continue this conversation," and hang up.

The Times diarist Mr Owen phones to invite me to lunch next week; gerne. Fabulous, how the media are coming back on line now that the Great Trial is over!

Adrian phones from the courthouse, very bullish about how well he has done in court today; and yes, so he has, so he has.

Sky TV come round at 5 p.m. to film, then a BBC crew with a jolly black-suited woman standing in for Jon Silverman at 6:10 p.m. I put on a shameless act for them.


 LATER I send this email response to a query from school student Tina S.: "Yes, I now have lawyers and fine counsel fighting with me. The appeal has to be fought strictly on points of law. As you will have seen perhaps from today's The Times diary, yesterday my attorneys [Goldsmith's] withdrew, -- we had a hearing before Judge Gray today! -- pleading that one of their junior partners (evidently their Mr L[...]) had objected on 'ideological grounds'. "

One wonders how high up the British judicial system such "ideological grounds" are allowed to permeate.

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Related files on this website

Witness statement of Penguin's lawyer Kevin Bays: he admits that Penguin's insurers, and not Penguin, paid the costs in Lipstadt libel action
A verbatim transcript of the day's hearing
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