David Irving v Penguin Books and Deborah Lipstadt is a case in English law against American historian Deborah Lipstadt and her British publisher Penguin Books, filed in the High Court of Justice by the British author David Irving in 1996, asserting that Lipstadt had libelled him in her 1993 book Denying the Holocaust. The court ruled that Irving's claim of libel relating to Holocaust denial was not valid under English defamation law because Lipstadt's claim that he had deliberately distorted evidence had been shown to be substantially true. English libel law puts the burden of proof on the defence, meaning that it was up to Lipstadt and her publisher to prove that her claims of Irving's deliberate misrepresentation of evidence to conform to his ideological viewpoints were substantially true.

Lipstadt hired British lawyer Anthony Julius while Penguin hired libel experts Kevin Bays and Mark Bateman of media law firm Davenport Lyons. Richard J. Evans, an established historian, was hired by the defence to serve as an expert witness. Evans spent two years examining Irving's work, and presented evidence of Irving's misrepresentations, including evidence that Irving had knowingly used forged documents as source material. Of utmost importance was the role played by another expert witness for the defence, the Holocaust historian Christopher Browning. Upon mutual agreement,Lipstadt (2005), page 47 the case was argued as a bench trial before Justice Charles Gray, who produced a written judgment 349 pages long in favour of the defendants, in which he detailed Irving's systematic distortion of the historical record of the Holocaust and Hitler's role therein.

History

In 1993, Free Press published Professor Deborah Lipstadt's book Denying the Holocaust: the Growing Assault on Truth and Memory.The book was first published in America in 1993 () by Free Press, a division of Simon and Schuster. It was republished in the United Kingdom in 1994 () by Plume, a division of Penguin – whom Irving sued.Lipstadt (2005), page 25 In it she described and condemned the phenomenon of Holocaust denial and referred to David Irving as a prominent Holocaust denier. One of the passages Irving later objected to was:

In November 1994, Lipstadt had her first direct encounter with Irving at DeKalb College in Atlanta, while she was lecturing on Holocaust denial. Irving had listened to the lecture while sitting in the lecture hall and when it was over, did his best to disrupt Lipstadt by challenging her to a debate, waving about a large amount of money in his hands and announcing he had $1,000 to give to her or anyone who could find a written order from Hitler for the Holocaust. Lipstadt ignored Irving, despite his repeated attempts to draw her into a debate. After Lipstadt's lecture had ended, Irving announced that Lipstadt's refusal to debate with him or produce a written order from Hitler for the Holocaust, despite his promise to pay $1,000 on the spot, proved that her criticism of him in Denying the Holocaust was invalid and he handed out free copies of his Göring biography to Lipstadt's students.

Libel suits

On 5 September 1996, Irving filed a libel suit concerning Lipstadt's book in English court. He named in his suit Lipstadt and Penguin Books, whose Plume division had published a British edition of her book.Pelt (2002), page 63 Irving also sued Holocaust historian Gitta Sereny for libel for an article she had written about him entitled "Spin Time for Hitler" in The Observer newspaper on 21 April 1996, although the case did not go to court. In letters of 25 and 28 October 1997, Irving threatened to sue John Lukacs for libel if he published his book, The Hitler of History, without removing certain passages highly critical of Irving's work.Evans (2001), page 27 The American edition of The Hitler of History was published in 1997 with the allegedly libellous passages but because of Irving's legal threats, no British edition of The Hitler of History was published until 2001. When the latter was published, as a result of the threat of legal action by Irving, the passages containing the criticism of Irving's historical methods were expunged by the publisher, to the disappointment of many reviewers.Lipstadt (2005), page 293

In her book, Denying the Holocaust, Lipstadt called Irving a Holocaust denier and falsifier, as well as a bigot, and wrote that he manipulated and distorted real documents. Irving claimed to have been libelled on the grounds that Lipstadt had falsely labelled him a Holocaust denier and falsely claimed that he had falsified evidence or deliberately misinterpreted it, by which false accusations his reputation as a historian was defamed.Holocaust Denial and the 2000 Libel Trial in the U.K. Emory University Though the author was American, Irving filed his suit in the English High Court, where the burden of proof in libel cases is on the defendant, unlike in the US where the burden is on the plaintiff. He was able to file the lawsuit in England because the book was published there (before 1996, if Irving had wished to sue Lipstadt, he would have had to launch his legal action in an American court; English libel law applies only to alleged acts of libel committed in England and Wales). As explained by the trial judge, Mr Justice Gray,

4.7 ... the burden of proving the defence of justification rests upon the publishers. Defamatory words are presumed under English law to be untrue. It is not incumbent on defendants to prove the truth of every detail of the defamatory words published: what has to be proved is the substantial truth of the defamatory imputations published about the claimant. As it is sometimes expressed, what must be proved is the truth of the sting of the defamatory charges made.

Legal issues

Irving's decision to file his lawsuit in the English courts gave him the upper hand by shifting the burden of proof. Under American libel law, a public figure who claims to have been libelled must prove that the statements in question are defamatory and false, and were made with actual malice or with reckless disregard for their truth or falsity. Reliance on reliable sources (even if they prove false) is a valid defence. English libel law requires only that the claimant show that the statements are defamatory. The burden of proof falls on the defendant to prove that the statements were substantially true and reliance on sources is irrelevant.Lipstadt (2005), page 31-32 If the defence could not prove the defamatory content of her words to be substantially true, they would be found guilty of libel. Lipstadt feared that such a verdict would confer legitimacy upon Irving's claims and felt compelled to defend herself.Lipstadt (2005), page 31 One commentator, who had expressed the opinion that Irving "could have been ignored", later wrote "Lipstadt had no choice but to defend herself in court".

To succeed with a justification defence, the defence would need to prove as substantially true all of the defamatory claims made by Lipstadt against Irving. The judge understood these claims to be,

Preparation

Defence

Lipstadt hired the British solicitor Anthony Julius to present her case. Penguin hired Davenport Lyons libel specialists Kevin Bays and Mark Bateman. Together they briefed the libel barrister, Richard Rampton KC. Penguin also instructed Heather Rogers as junior barrister. Penguin knew that they were going to have to dig deep to defend against Irving's claims. Lipstadt's claims would need to be backed up by experts and Penguin would foot the bill, retaining Professor Richard J. Evans, historian and Professor of Modern History at Cambridge University, as their lead witness.Lipstadt (2005), page 42 As an expert witness, Evans was expected to prepare a report and to be cross-examined. Also working as expert witnesses were the American Holocaust historian Christopher Browning, the German historian Peter Longerich, the Dutch architectural expert Robert Jan van Pelt and the Political Science Professor of the Free University of Berlin.Irving v Lipstadt (2000), Paragraph 4.17The reports each of them wrote can be found here

The legal strategy was to

Provide evidence that the Holocaust happened, with a specific focus on the evidence for: the existence and use of gas chambers; and a co-ordinated Nazi plan, directed by Hitler, for the extermination of Jews. The goal was not to prove the Holocaust, but to show that any reasonable and fair-minded historian would not doubt it, and that Irving must therefore not be reasonable or fair-minded. Document Irving's political views and associations with extremist, neo-Nazi groups. Examine Irving's work to see whether Irving did indeed falsify the historical record, as Lipstadt had claimed he did.

Van Pelt, Browning and Longerich were assigned to the first part. Funke wrote a report for the second and Evans the third.Evans (2001), pp. 29–30

The lawyers for Lipstadt (Mishcon de Reya) and Penguin (Davenport Lyons) worked closely, for the most part agreeing on the way to deal with the claim. One minor setback came when Penguin and their lawyers Davenport Lyons were keen that the information provided by the experts they had instructed be incorporated in an amended defence (which Heather Rogers drafted). Initially Mishcon were unpersuaded but Davenport Lyons were insistent, feeling that the amended document provided a clear statement of the strong evidence against Irving. The decision was eventually left to Richard Rampton and Heather Rogers as they would be presenting the case and both were in favour of amending; Mishcon relented.

The testimony of van Pelt and Evans proved to be the most substantial. During cross-examination, Irving was unable to undermine either Evans, who had been highly critical of his scholarship, or van Pelt, whose report concentrated on the evidence that contradicted the Holocaust deniers' arguments about Auschwitz Birkenau. Evans was assisted by two postgraduates, Thomas Skelton-Robinson and Nik Wachsmann, who acted as researchers; Evans and his students took 18 months to write a 740-page report, finishing it in the summer of 1999.Lipstadt (2005), page 43

Settlement offers

A short time later, Irving privately approached Penguin and offered to drop them from his lawsuit if they would pull the book from publication in the UK and destroy all of the remaining copies, publicly disavow all of Lipstadt's conclusions and make a charitable donation of £500 in the name of Irving's daughter (who was disabled). He also suggested to Penguin that they keep any terms confidential because he had no intention of settling with Lipstadt. Bays and Bateman made clear that the publisher rejected his terms. Three weeks later, Irving officially offered to settle with both parties, the terms being that the book be withdrawn from circulation, both parties apologise and (each) make a £500 donation. Lipstadt instructed her lawyers to reject the offer.Lipstadt (2005), page 69–70 Irving later claimed without evidence that Penguin wanted to settle the case (not specifying whether this applied to one of his two "offers" or both of them) and were somehow pressured by Dr. Lipstadt not to; D. D. Guttenplan's book outlined how Penguin dismissed Irving for several reasons, including contempt for him and dismay over the certainty that the publisher would have been called by Lipstadt's lawyers as plaintiff advocates if they had settled the lawsuit.

Trial

Testimony

Evans

Evans and his two assistants spent more than two years examining Irving's work. This research found that Irving had misrepresented historical evidence to support his prejudices. In his report and testimony, Evans suggested that in his view, Irving had knowingly used forged documents as sources, and that for this reason, Irving could not be regarded as a historian. His conclusions were that