Irving trial: Justification of all allegations not necessary

In Irving v Penguin Books Ltd and another (unreported, QBD, 11.4.00) the author and historian David Irving lost his libel action against Penguin Books and Deborah Lipstadt, the author of the book called 'Denying the Holocaust – The Growing Assault on Truth and Memory' despite Penguin's inability to prove that all of the defamatory allegations in the book were true.

Mr Irving claimed, among other things, that the book had accused him of being an apologist for and partisan of Hitler who had resorted to the distortion of evidence, the misquoting of sources, the falsification of information and the bending of historical evidence so that it conformed to his neo-fascist political agenda and ideological beliefs.

Penguin argued that the claims made about Mr Irving in the book were true and it succeeded in this argument even though the judge found that the truth of some of the statements had not been proved. This was because section 5 of the Defamation Act 1952 states that a defence of justification will not fail in respect of multiple allegations against a claimant if the words not proved to be true do not materially injure the claimant's reputation having regard to the allegations which are proved to be true. In other words, Mr Irving's reputation was already so damaged by the allegations which Penguin had proved that no more damage could accrue to him.

In many cases a section 5 defence will not work. For example, in the action by McDonalds against activists Helen Steel and David Morris, for example, the defendants tried to justify a number of allegations which they had made against McDonalds in a pamphlet distributed to members of the public outside a McDonalds restaurant. The truth of two of the allegations was proved to the satisfaction of the court but the remaining (and arguably more serious) allegations were not proved and McDonalds succeeded in the action.

In Irving, however, it is hard to see how the unproved allegations could possibly have damaged Mr Irving's reputation any more than those which the judge ruled "eal...him to be a rightwing pro-Nazi polemicist [with a] political agenda...which...disposes him, where he deems it necessary, to manipulate the historical record in order to make it conform with his political beliefs.

Mr Irving maintains that he intends to appeal the Court's decision.

For further information contact Tim Hardy, Head of Commercial Litigation and Dispute Resolution on +44 (0)20 7367 3000 or e-mail [email protected].