Losing was unthinkable. The rest is history

Everyone, even David Irving, has a right to have their reputation protected. The outcome is a sparkling vindication of British libel laws.
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Mr Justice Gray's decision last week in the case of David Irving against Professor Lipstadt and Penguin books has been, on the whole, universally welcomed. In astonishingly strong terms (although no more than the evidence demanded) Mr Justice Gray branded Mr Irving an anti-semite, a holocaust denier and a pro-Nazi polemicist. Irving, said the judge, distorts, manipulates and embroiders history to suit his political agenda.

Two of the dissenting voices came from Donald Cameron Watt and John Keegan, historians subpoenaed by Irving to give evidence on his behalf. They argued history needs its mavericks, its unconventional, controversial figures. Each missed the point. History does not need liars, idealogues prepared to subjugate truth for propaganda. If such people do decide to launch attacks on their critics (remember Irving sued professor Lipstadt) and are then found out, they cannot then complain about the result - nor should anyone on their behalf.

Otherwise, commentators have praised the judge's decision, his forthrightness and the assiduity and scholarly preparation of the experts. They have condemned the hateful, anti-semitic ideology of holocaust denial and Irving's expressions of racism. Yet among all of this there has not been any comment on the manner in which English libel law rose to the challenge of this immensely complicated and emotive subject.

In the last six months libel cases have been constantly in the headlines. Hamilton, Archer, Living Marxism and Demon. Each time, there has been a wholesale attack on the libel laws. The critics say: the law restrains free speech, too great an onus is on the defendant, juries are unpredictable, damages are too high, actions are too expensive. Has the result in the Lipstadt case redressed the balance at all? Not really, according to the commentators. They say: while the result is to be welcomed, Irving should never have been able to bring the action in the first place; or why should Penguin and Professor Lipstadt have had to pay such huge costs to defend their right to publish?

The Lipstadt case, however, in truth is a sparkling vindication of the libel laws. Everyone has a right to have their reputation protected. Every civilised jurisdiction recognises this. The only question is what limits are placed on that right. It is a question of balance. Irving was certainly defamed by Professor Lipstadt. His reputation as an historian was seriously maligned. She called him a distorter of history and a dangerous spokesperson for Holocaust denial. He sued. Her response was to say the allegations were true. It has been said that in the United States Irving could not have sued because he is a public figure and, therefore, under the Sullivan principles would have had to establish malice on professor Lipstadt's part. This misses the point. Even in the United States, professor Lipstadt would not have relied on putting Irving to proof of malice, she would have said "everything I've written is true". What about the costs? Anthony Forbes-Watson, the managing director of Penguin books, said at the press conference after the judgment that for Penguin the value of the judgment and protecting its and its authors' right to publish went beyond mere commercial considerations. Penguin did take a brave stand. But libel actions and the associated costs are part of the process of publishing. They are to the publishing industry what construction disputes are to the building industry. If the litigation is expensive that is a criticism of the price of litigation - not of libel litigation specifically.

In a sense, then, this case was just another libel case. One, however, in which absolutely the right result was achieved. In many other ways it was unique. Certainly, I have never been involved in such a case.

The prospect of losing was unthinkable. Losing would not necessarily have cast doubt on the Holocaust. It would, however, have conferred respectability on Irving and his views.

We were, therefore, painstakingly cautious and methodical. The foundations of the success rested on a series of disclosure applications in which Irving was forced to reveal all his historical documents and also all documents evidencing his connections with the far-right. This provided material for a team of experts to examine Irving's historical works and political connections.

This connection was critical. It was not enough to show that Irving had distorted history, manipulated his sources or mistranslated documents. It was insufficient to expose him as a careless historian. To prove the truth of Professor Lipstadt's words, it had to be proved that he had done all this deliberately. In the judge's mind two things established this: first Irving's racism, anti-semitism and associations with far-right extremists; and second the pattern of the distortions. They all tended in one direction - the exculpation of Hitler and the sanitisation of the Nazi regime.

History, then, was the background to the case. The case was not, though, about history. It was about Irving's treatment of history. This was another of the case's distinguishing features. Most cases are an examination of an historical moment: was the murder committed? Was the contract breached? Was the employee fairly dismissed? The judge specifically commented twice in his judgment that his role was not to make decisions about history. His was a value judgment on Mr Irving's integrity and his treatment of the historical record.

The newspapers and lawyers have criticised the legal aspects of the case: the historians commenting have doubted the court's ability to deal with historical matters. The experts in the case, however, were impressed by the forensic rigours of the litigation process. Over 32 days of evidence, there was an unfettered, intelligent exploration of the historian's craft and standards with which the court and Mr Justice Gray dealt admirably.

A fantastic result softens one's attitude to the courts and the litigation process. In the light of last week's decision everything looks rosy. Four years of exceedingly hard work, thousands of files of documents, hundreds of late nights are all worth it. Had Professor Lipstadt lost, no doubt my attitude may have been very different. She didn't. The result was the right one and could perhaps only have happened in this country. In that respect, it is a testament to our libel laws.

The calls to alter the law radically should be resisted. Changes are happening anyway. Public opinion has seen a move away from the court being so claimant friendly; case law (through the landmark Reynolds ruling) has conferred greater protection for responsible reporting and writing and the Human Rights Act will also have an effect on libel actions, as have the Woolf reforms. For the time being that is enough.

 

James Libson is a partner in Mishcon de Reya. Anthony Julius is a consultant for Mishcon de Reya and junior counsel for Professor Lipstadt