Irving v Penguin Books Ltd & Anor

Factual and Procedural Background

This opinion concerns an application for permission to appeal a judgment delivered by Judge Gray on 11 April 2000. The judgment dismissed a libel claim brought by the Plaintiff against a book entitled "Denying the Holocaust The Growing Assault on Truth and Memory," authored by Professor Lipstadt and published in the United Kingdom in 1994. The Plaintiff, an author specialising in Third Reich history, alleged he was defamed by statements in the book accusing him of distorting historical evidence, Holocaust denial, and association with extremist groups.

The original trial ran from 11 January to 15 March 2000, with judgment given on 11 April 2000. The Plaintiff appeared in person, represented at the current application by Attorney Davies, while the Respondents were represented by Attorney Rampton QC. The application challenges the trial judge’s findings, particularly regarding the Plaintiff’s reputation as a historian and the justification defense.

Legal Issues Presented

1. Whether the Respondents succeeded in establishing the substantial truth of their allegations that the Plaintiff falsified and misrepresented historical evidence.
2. Whether the defamatory meanings attributed to the contested passages were justified under the defence of justification.
3. The appropriate test for assessing the Plaintiff’s historiography and the standard of proof required.
4. The scope and admissibility of expert evidence presented at trial, particularly regarding architectural and chemical matters.
5. The applicability of section 5 of the Defamation Act 1952 in relation to partially unproven defamatory imputations.
6. Whether permission to appeal should be granted against the trial judge’s verdict.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff contended that the Respondents’ expert witnesses were ideologically biased, particularly targeting Professor Evans, whose evidence was described as influenced by personal animosity.
• It was argued that the Plaintiff’s historical views were honestly held and fell within a range of reasonable interpretations based on evidence available at the time of publication.
• The Plaintiff asserted that the Respondents bore the burden of proving not only that his views were wrong but that they were wholly unreasonable and dishonest.
• The Plaintiff emphasised that he had modified his views when new evidence emerged and had disclosed documents to other historians, demonstrating integrity.
• Challenges were made to the admissibility and scope of expert evidence, particularly that of Professor van Pelt on architectural and chemical issues, and to the fees paid to experts.
• The Plaintiff argued that certain allegations, such as his participation in a conference attended by terrorist organisations, were materially damaging and not justified.
• On specific historical issues, the Plaintiff contested the trial judge’s findings, including the interpretation of the Auschwitz evidence, the Schlegelberger note, and the treatment of the Goebbels diary entry.
• The Plaintiff submitted that the judge had reversed the burden of proof on some matters and failed to properly weigh oral testimony against documentary evidence.

Respondents' Arguments

• The Respondents maintained that they had discharged the burden of proof to justify the defamatory imputations, demonstrating that the Plaintiff deliberately distorted historical evidence to serve ideological ends.
• They relied on a convergence of documentary and eyewitness evidence to establish the existence and scale of the Holocaust, including mass gassings at Auschwitz.
• The Respondents argued that the Plaintiff’s historiography was marked by selective quotation, misrepresentation, and omissions that undermined his credibility as a historian.
• They contended that the expert evidence, including that of Professor van Pelt, was properly admitted and relevant to the technical issues in the case.
• The Respondents invoked section 5 of the Defamation Act 1952 to defend certain defamatory imputations that were not proven but did not materially injure the Plaintiff’s reputation in light of the proven charges.
• They submitted that the allegations concerning the Plaintiff’s association with extremist groups and Holocaust denial were justified and central to the case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed analysis of the contested defamatory meanings and the evidence supporting justification. It accepted the trial judge’s comprehensive assessment of the Plaintiff’s historiography, which found that the Plaintiff deliberately distorted and manipulated historical evidence to serve an ideological agenda. The Court emphasized the importance of the Plaintiff’s integrity as a historian, noting that the Plaintiff’s reputation was central to the case.

The Court agreed with the trial judge’s approach that the issue was not to determine historical truth per se but to assess whether the Plaintiff’s treatment of evidence was substantially true or a deliberate falsification. The Court found that the Respondents discharged the burden of proof on the core allegations, including Holocaust denial and misrepresentation of key historical events.

The Court rejected the Plaintiff’s challenges to the admissibility and scope of expert evidence, finding that expertise in related fields was sufficient for the evidence given. It also rejected the Plaintiff’s submissions that the trial judge reversed the burden of proof, explaining that the judge’s directions were appropriate in context.

On the specific issue of Auschwitz, the Court accepted the trial judge’s conclusion that no objective, fair-minded historian could seriously doubt the existence of gas chambers operated on a substantial scale, despite the Plaintiff’s expressed doubts. The Court acknowledged the complexity of the evidence but found the trial judge’s evaluation sound.

The Court also upheld the trial judge’s findings regarding selective quotation and misleading treatment of documents and diary entries, such as the Schlegelberger note and Goebbels diary, which illuminated flaws in the Plaintiff’s historiography.

Regarding section 5 of the Defamation Act 1952, the Court agreed that the unproven defamatory imputations did not materially injure the Plaintiff’s reputation in light of the proven charges, supporting the trial judge’s reliance on this statutory provision to uphold the defence.

Finally, the Court considered the application for permission to appeal, concluding that the Plaintiff had not demonstrated a real prospect of success on appeal given the thoroughness and reasonableness of the trial judge’s findings and the evidential record.

Holding and Implications

The Court REFUSED PERMISSION TO APPEAL against the judgment of the trial judge dismissing the Plaintiff’s libel claim.

The direct effect of this decision is the final affirmation of the trial judge’s verdict that the Respondents’ defence of justification succeeded on the central defamatory imputations. The Plaintiff’s reputation as a historian was found to be so fundamentally damaged by the proven allegations that unproven imputations did not materially affect it. No new legal precedent was established; rather, the Court affirmed the established principles governing defamation, justification, and the assessment of expert evidence in complex historical disputes.