David Irving v Penguin Books and Deborah Lipstadt/III

III. THE NATURE OF IRVING’S CLAIM FOR DAMAGES

Relevant considerations

3.1 Where the publication of defamatory words is proved and no substantive defence has been established, English law presumes that damage will have been done to the reputation of the person defamed. The amount of the damages recoverable by a particular claimant, if successful on liability, will depend on a variety of factors including the nature and gravity of the libel; the extent of its dissemination; the standing of the claimant; the injury to his or her feelings; the extent of any additional injury inflicted by the conduct of the defendants; and so on. It is possible to claim pecuniary loss but no such claim arises here. Damages maybe reduced, perhaps even to vanishing point, to the extent that the defendants succeed in partially justifying the defamatory imputations complained of.25

Irving’s case on damages

3.2 Irving contends that Lipstadt in Denying the Holocaust makes an attack not only upon his competence as an historian but also upon his motivation. As I have already found, the book accuses Irving, amongst other things, of deliberate perversion of the historical evidence. I readily accept that, to any serious historian, his or her integrity is vital. That is no doubt why, in his evidence, Irving said that for him his reputation as a truth-seeking historian is more important than anything else. The other meanings which I have found the passages complained of to bear are also serious, although in my judgment less so. Irving is entitled to regard the passages in the book of which he complains as containing grave imputations against him in both his professional and personal capacity.

3.3 The Defendants admit that Denying the Holocaust has been published within the jurisdiction. Although not specifically so pleaded, I bear in mind the evidence of Irving that the book has been put on the Internet and widely circulated to libraries.

3.4 In relation to his own standing as an historian, Irving described his career as a writer and commentator on the Third Reich. He is the author of a great number of serious historical works, most of which have been favourably received. Irving referred to the favourable reviews accorded to his works by eminent historians such as Lord Dacre. He was understandably reluctant to sing his own praises. But he claimed credit for the amount of original research he has done and for the number of documents which he has discovered in the archives. Irving supplemented his own evidence with that of Professor Donald Watt (whom I describe in section 4 below), who testified that, in those areas where his political convictions are not involved, he is most impressed by Irving’s scholarship. Whilst he might not place Irving in the top class of military historians, his book Hitler’s War was a work which deserved to be taken seriously. Watt also noted that Irving had stimulated debate and research into the Holocaust. Sir John Keegan (also described below) gave evidence that he adhered to a view which he had expressed some years ago that Hitler’s War was one of two outstanding books on World War II.

3.5 On the other hand account must also be taken of the view expressed by one of the Defendants’ experts, Professor Evans, that Irving has had “a generally low reputation amongst professional historians since the end of the 1980s and at all times amongst those who have direct experience of researching in the areas with which he concerns himself”. Both Professor Watt and Sir John Keegan regarded as unacceptable the views expressed by Irving about the Holocaust and Hitler’s knowledge of it.

3.6 It was abundantly plain from his conduct of the trial that the factor to which Irving attaches the greatest importance in connection with the issue of the damages is the conduct of the Defendants and the impact which that conduct has had on himself, both personally and professionally, as well as on his family. Irving made plain in his opening, on repeated occasions during the trial and in his written and closing submissions that he regards himself as the target of a well-funded and unscrupulous conspiracy on the part of “our traditional enemies” aimed at preventing the dissemination of his books, ensuring that he is banned from as many countries as possible and stifling his right to freedom of expression. Although Irving at one stage disputed the point, it was reasonably clear that the “traditional enemies” were the members of the Jewish community. His claim is that he is the victim of an international Jewish conspiracy determined to silence him. Irving’s argument was supported, in general terms, by Professor Macdonald (whom I shall describe later) but the assistance which I derived from his evidence was limited.

3.7 The Defendants are critical of the latitude which I allowed Irving in developing this theme. They contend, correctly, that in the ordinary run of litigation, the rules of evidence would have prevented him advancing any such case. However, for a number of reasons, I thought it right not to take too strict a line. Irving has represented himself throughout (demonstrating, if I may so, very considerable ability and showing commendable restraint). This has not been a trial where it has been possible or appropriate to observe strict rules of evidence. Furthermore Irving has been greatly hampered in presenting this aspect of his case by the unexpected decision of the Defendants, in full knowledge of the allegations which Irving was making about the conduct of Lipstadt, not to call her to give evidence and to be cross-examined by Irving. It goes without saying that the Defendants were perfectly entitled to adopt this tactic but it did place Irving, acting in person, at a disadvantage.

3.8 I explained to Irving that, in order to be able to obtain increased damages on this account, it would be necessary for him to prove on the balance of probability that both the Defendants were implicated in the alleged conspiracy26. Irving did not hesitate to accuse Lipstadt of having been a prime mover. He claimed that her book was part of a sinister international campaign to discredit him. He alleged that she was acting in league with the Anti Defamation League, the Board of Deputies of Jews and other organisations intent on targeting him. He called Professor Kevin Macdonald, a professor of psychology, to testify as to the machinations of the “traditional enemies of free speech” (ie the Jews). Irving alleged that the passages to which he takes objection in Denying the Holocaust were inserted by Lipstadt at a late stage for the purpose of discrediting him. He complained that she made no attempt whatever to verify the allegations by contacting him or otherwise. He testified that it became apparent to him some three years after Denying the Holocaust was published that a concerted attempt was being made to persuade bookshops to cease stocking his work. According to Irving, Lipstadt was instrumental in procuring the decision of his American publishers not to go ahead with the publication of his most recent work, the biography of Goebbels, to which he had devoted no less than nine years work. He claimed, by implication at least, that she was also complicit in bringing pressure to bear on Irving’s UK publishers to repudiate their contract to publish his Goebbels biography (at considerable cost to Irving). He claims that Lipstadt has been deeply involved in the campaign of intimidation against him and that she has actively sought to destroy him as an historian.

3.9 In assessing these claims by Irving, whose suspicions and indignation are obviously genuine, I must act on evidence and not assertion. On the evidence of the contents of the book itself, I accept that it does indeed represent a deliberate attack on Irving, mounted in order to discredit him as an historian and so to undermine any credence which might otherwise be given to his denials of the Holocaust. That is a factor which is to be taken into account, if the issue of damages arises. Beyond that finding, however, I do not consider that Irving’s claim to have been the victim of a conspiracy in which both Defendants were implicated is established by the evidence placed before me.

3.10 The question of damages will arise if, and only if, the substantive defence relied on by the Defendants fails. I therefore turn to that defence.