NO: A2/2000/2095

Neutral Citation Number: [2001] EWCA Civ 935
IN THE SUPREME COURT OF JUDICATURE                    
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)
                                  Royal Courts of Justice  
                                  Strand    
                                  London WC2
 
                             Friday, 15th June 2001
B e f o r e :

LORD JUSTICE PILL

LORD JUSTICE MANTELL

and

LORD JUSTICE BUXTON

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DAVID IRVING

‑ v ‑

PENGUIN BOOKS LIMITED & ANOTHER

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
(Official Shorthand Writers to the Court)
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MR ADRIAN DAVIES (instructed by Nigel Adams & Company, 517 Folgate Street, London E1) appeared on behalf of the Appellant
MR RICHARD RAMPTON QC and HEATHER ROGERS (instructed by Davenport Lyons, 101d Burlington St, London W1X 2NL) appeared on behalf of the Respondent

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J U D G M E N T
Friday, 15th June 2001

1.	LORD JUSTICE PILL: This is an application by Mr David John Caldwell Irving to adjourn the hearing of his appeal against the judgment of Gray J which is listed for Wednesday of next week. The application was first received by Master Venne yesterday morning and is in these terms:
“I write to inform you that I have late yesterday terminated the retainer of my solicitors, Nigel Adams & Co. I am shocked at the amount of the bill that they rendered me two days ago and am neither willing nor able to put his firm in funds on the scale that he is demanding. I am thoroughly dissatisfied with the speed and thoroughness of this firm's preparation of my application for permission to appeal. I have been unable to resolve my differences with this firm. Accordingly counsel's brief has not been delivered, and I am now without representation.
I have no alternative but to ask the Court of Appeal for a short adjournment in order to allow me to arrange alternative representation. I do have significant funds readily available to pay to new solicitors, and my counsel has told me that if a brief is delivered to him, he will be able to complete his preparation for the appeal in short order. I deeply regret the inconvenience that a late adjournment would involve for the Court and the Defendants, but if it is not granted, this appeal will go by default, which I respectfully suggest would be the greater injustice.
I look forward to hearing from you. I am willing to attend before you [that is Master Venne] or before Lord Justice Pill at any time (except mid‑afternoon today Thursday). My counsel has told me that he would be willing to attend with me, if his attendance would assist.” 
2.	A telephone number is given.
3.	When Master Venne referred the matter to me, I directed that the application be heard this afternoon. The constitution of the Court which has convened, myself, Lord Justice Mantell and Lord Justice Buxton, is the constitution which is listed to hear the application with appeal to follow on Wednesday of next week. There is also an application by Mr Irving to call fresh evidence at the hearing of the appeal.
4.	Mr Irving has appeared this afternoon by counsel, Mr Adrian Davies, who has made submissions in support of the application. He appears pro bono this afternoon. We also had an application from Mr Adams of Nigel Adams & Company to come off the record. We have acceded to that application. He wishes to come off the record. Mr Irving has made it clear in the letter I have read that he has terminated the retainer of his solicitors, Nigel Adams & Company. The result is that that firm is now off the record.
5.	The application is opposed on behalf of the respondents by Mr Rampton QC. In support of the application Mr Davies has submitted a letter from solicitors Amhurst Brown Colombotti dated 15th June in which they express their willingness to act for Mr Irving on the hearing of the appeal. I do not propose to refer to the letter in any detail. The letter written by Mr Steven N Morris encloses the firm's terms of retainer and deals with other practical matters as one would expect. They have expressed the wish to have 21 days to prepare for the appeal. At page 3 of the letter it is stated:
“Bearing in mind that I envisage that my firm's involvement will be of a positive and proactive nature, I am concerned, from the administrative viewpoint, that the timetable which you have outlined to date may be tight and will certainly be tight if the application to the Court of Appeal today for an adjournment is not successful. If, on the other hand, the application for leave to appeal is adjourned for a period of, say, 21 days, this would allow you to place me in funds as requested above and also allow my firm to become acquainted with the case.” 
6.	It is for a 21‑day adjournment that Mr Davies on behalf of Mr Irving applies. He submits that Mr Irving recognises that to grant the adjournment would be a great indulgence. It would involve injustice to the respondent, Professor Lipstadt; nevertheless, he submits, it is desirable to grant the application, and Mr Irving throws himself, to use Mr Davies' expression, on the mercy of the Court. Mr Davies has also told the Court of his own position as he views it. He says that less than 48 hours ago he ceased preparing the case knowing the difficulties between Mr Irving and his then solicitors. He was not prepared to conduct further work until a brief was delivered. He accepts that he has done a considerable amount of work by way of preparation, but submits that he still has four to five days' work to do. He has already lost 48 hours of that by reason of the decision he took something less than 48 hours ago. He says he is not prepared to do further work until a brief is delivered. If it were to be delivered on Monday he says, he would instruct his clerk to return the brief on the ground that he could not in the time, which would then be available, properly prepare himself. Mr Davies has said repeatedly that he would do no work until a brief is delivered and that one delivered on Monday would be returned on his behalf.
7.	Mr Davies also tells the Court that Mr Irving who conducted his own case before Gray J at a long hearing is not prepared to present the appeal himself. The result is that unless the adjournment is granted, the application with appeal to follow will not be presented to the Court on Wednesday of next week.
8.	For the respondents Mr Rampton opposes the application. He refers to the fact that a notice of appeal which consisted of a very long skeleton argument was submitted to the Court as long as ago as May 2000. That was responded to in September 2000 and a reply was received in October of that year. Both the notice of appeal (or skeleton argument) and the reply were settled by Mr Adrian Davies. Judgment was given in April 2000, and by present standards whereby backlogs have been very much reduced in this Court, a substantial period of time has already elapsed, a period of about 14 months since judgment was delivered.
9.	I draw attention to the fact that the application for fresh evidence was submitted in March. That is three months ago and was also accompanied by a skeleton argument. The respondents have done a considerable amount of work in reply to the application which is to be made. Understandably, Mr Rampton refers to the position of Professor Lipstadt who is personally involved as a respondent and under strains accordingly. That point needs no great elaboration. He also says that a witness whom he would propose to call if permission is granted to call fresh evidence, Professor Van Pelt, is either already or will shortly be on his way to this country for next week's hearing. He would find it very difficult to fit in a further stay in this country if the matter were to be adjourned. In those circumstances, Mr Rampton submits, the application should be refused.
10.	Courts are concerned to do justice as between the parties. I have referred to the lapse of time since judgment was given. There has already been an adjournment in this case. It was following a directions hearing in the early part of this year. The case was adjourned by me from the date in March, which had been fixed, in these terms:
“The hearing of the claimant's application hearing listed to begin on 19th March 2001 be vacated and relisted in June 2001.” 
11.	The application to adjourn was made by Mr Davies on Mr Irving's behalf. It was opposed then, as now, by Mr Rampton on behalf of the respondents. A ground put forward was that Mr Irving was at the time the date was fixed going to the United States in order to attempt to raise funds for the instruction of leading counsel. He has not succeeded in that objective, but Mr Davies has told us that Mr Irving is in funds substantially large to instruct him, Mr Davies, and the proposed new solicitors for the appeal hearing.
12.	This therefore is a second application, the Court having already granted an adjournment of three months and about 14 months having elapsed since the date of the judgment with the inevitable continuing stress upon those involved, notably Professor Lipstadt.
13.	The Court has also to consider its own position. That is material to the proper administration of justice. The case has been fixed for next week so that the same constitution, myself, Lord Justice Mantell and Lord Justice Buxton which was due to hear the application (and if granted appeal) in March could be reconvened. Each of us has done a considerable amount of preparation for next week's hearing. The appropriate bundles of documents have been prepared and delivered to the Court. It will cause considerable inconvenience to the work of the Court if we accede to this application. It would be extremely difficult for the same constitution to be reconvened at a future date. The complexity of fixing constitutions and cases suitable for them can readily be understood, I am sure, and the difficulties, without considerable inconvenience to other people, of fixing a fresh hearing with the present constitution are considerable. Moreover, if fresh judges were appointed to hear the appeal, then they would have a great deal of preparation and the work done by this constitution would have been aborted. These are no matters of personal convenience. The work of the Court of Appeal requires that parties do, unless there are strong reasons to the contrary, abide by the dates which are fixed for hearing. Other potential appellants are adversely affected also if the work of the Court is disrupted in this way. Time has been set aside for this application and, if granted, appeal. If it has do go back then other cases to be heard at that time will have to be adjourned with inevitable inconvenience and, in some cases, distress to those concerned.
14.	I would not accede to this application. In my judgment, doing justice between the parties, it would not be just to adjourn it now for a second time. The position has to be considered between Mr Irving, on the one hand, and the respondents on the other. The Court cannot, on the information it has been given grant an application by one of the parties because he has fallen out with his solicitors and expects in circumstances such as the present an adjournment to instruct further solicitors at a point so close to the hearing. I bear in mind those factors and the submissions made by Mr Rampton and also the position of the Court itself, to which I have referred. I would not propose to make any comment upon the professional position of Mr Davies. It is Mr Irving's application. In my judgment it should not be granted and the case will remain in the list for Wednesday of next week.
15.	LORD JUSTICE MANTELL: I agree.
16.	LORD JUSTICE BUXTON: I also agree.
(Application for adjournment refused; respondent to have costs of application)