Irving v Penguin Books Ltd & Anor

On an application for permission to appeal in a libel action, the Court of Appeal confirmed that justification required proof of the substantial truth of the defamatory imputations. Where the imputations concerned a historian’s treatment of evidence, the relevant question was whether the evidence had been falsified or misrepresented and, if so, whether that conduct was deliberate and motivated by ideological beliefs or prejudices. The appellate court should scrutinise the trial judge’s reasoning, but must give substantial weight to findings based on the assessment of oral expert evidence and the parties’ approach to source material. Under Defamation Act 1952, s 5, a justification defence may succeed despite some unproved charges where those charges do not materially injure reputation in light of the charges proved. Permission to appeal was refused.

David Irving brought a libel claim against Penguin Books Ltd and Professor Deborah Lipstadt concerning passages in Denying the Holocaust. Gray J dismissed the claim after finding that the principal imputations concerning Mr Irving’s historiography, Holocaust denial, antisemitism, racism and association with extremists were substantially justified. Some allegations were not proved, including an allegation concerning a conference attended by representatives of terrorist organisations and the removal of microfiches. The respondents relied on s 5 of the Defamation Act 1952. Mr Irving applied for permission to appeal, challenging the evaluation of the evidence, the treatment of expert evidence, the approach to the Auschwitz evidence and the application of s 5. The central issue was whether there was a real prospect that the judge’s verdict could be successfully challenged.

Application refused. The Court held that the applicant had not shown any arguable error capable of giving the appeal a real prospect of success.

1. The trial judge correctly distinguished between determining what historically happened and determining whether Mr Irving had falsified or misrepresented the available historical evidence. The respondents bore the burden of proving the substantial truth of the relevant imputations and, where deliberate perversion of evidence was alleged, that the conduct was motivated by ideological beliefs or prejudices.
2. The appellate court could examine documents and the trial judge’s reasoning closely. However, the trial judge was in the best position to assess the reliability of the historians and the manner in which their oral evidence was given. That assessment was a significant part of the case and was not undermined by the submissions advanced.
3. The judge was entitled to conclude, on the totality and convergence of the documentary and expert evidence, that no objective, fair-minded historian would have serious cause to doubt that gas chambers at Auschwitz had operated on a substantial scale. The judge’s reference to the competing factual positions did not reverse the burden of proof or misdirect himself.
4. The judge was also entitled to find that Mr Irving’s treatment of a range of historical material was selective, misleading and tendentious. This included his treatment of the Schlegelberger note, the Goebbels diary, the meetings concerning Hungarian Jews, Himmler’s speeches, Ribbentrop’s evidence and the Dresden casualty figures.
5. The expression “Holocaust denier” had no precise technical meaning and did not define a precisely bounded class. In the context of Mr Irving’s published views and methods, the respondents were justified in using that description and in describing him as one of the most dangerous spokespersons for Holocaust denial.
6. Section 5 of the Defamation Act 1952 applied. The proved charges concerning deliberate manipulation of historical evidence, Hitler’s role, Holocaust denial, antisemitism, racism and extremist associations were sufficiently grave that the unproved conference allegation did not materially injure Mr Irving’s reputation having regard to the proved charges.
7. The applications to adduce fresh evidence were refused or not pursued. The respondents were awarded their costs of the applications, and the stay on Gray J’s costs order was removed.

1. Queen’s Bench Division: Gray J dismissed Mr Irving’s libel claim on 11 April 2000, finding that the principal defamatory imputations were substantially justified and applying s 5 of the Defamation Act 1952 to the unproved charges.
2. Court of Appeal (Civil Division): Sedley LJ refused permission on paper on 18 December 2000. The present court agreed with his reasons, subject to its view that Gray J was in a better position to evaluate the oral expert evidence.
3. Court of Appeal (Civil Division): permission to appeal was refused. The applications concerning fresh evidence were dealt with in the judgment, and costs orders were made.