Gervais

The Gervais defence - favoured by edgy comedians and some barristers


A male barrister who was reprimanded for describing a female legal executive as a "hysterical woman", has lost his appeal in the High Court. 

Feliks Kwiatkowski was having a post-hearing chat with an opponent barrister at court, when he referred to a witness statement, drafted by a female legal executive, as that of a "hysterical woman". 

“I have been practising since before this century," Kwiatkowski told the other barrister. "When more women joined the profession, the ground shifted. You do get stupid and unreasonable men in the profession, but the ground shifted – the number of incidents of overegging the pudding and just going overboard in a routine situation multiplied.”

When the opponent barrister asked Kwiatkowski to clarify whether he was referring to women as being "intemperate", Kwiatkowski replied, "yes, that was the word, intemperate".

The matter was brought before the Bar Tribunals and Adjudication Service. Kwiatkowski denied being a misogynist and told the tribunal that he did not intend "to sound sexist or otherwise offensive," and said that he welcomed women into the profession. But he believed, as a generalisation, that "women tend to be more emotional than men," which is "a biological fact rather than an insult.” 

He offered his "sincere apologies" for the incident at court, saying that it had "brought home to me the extent to which sensibilities have changed since I was called to the Bar and this is most certainly a point that I shall bear in mind in future."

However, the disciplinary tribunal ruled that Kwiatkowski had diminished the trust and confidence which the public placed in him, and fined him £500.

The barrister appealed the decision, arguing that the tribunal's ruling violated his freedom of expression, and that he was being "persecuted for expressing inconvenient truths that do not square with Hard Left dogma."

At the appeal in the High Court, Kwiatkowski's barrister, Marc Beaumont, denied that the language was sexist and discriminatory, and said that "political correctness" should not be part of regulation at the Bar. 

"Barristers have been sparring outside court for as long as someone of my call can remember," Beaumont said. The BSB should not police such verbal exchanges, Beaumont argued, as they are a "natural feature of a vigorous adversarial contest".

He also claimed that the tribunal was wrong to find that Kwiatkowski had diminished trust and confidence among the public, because no members of the public were present.  

Beaumont's co-counsel, Shivani Jegarajah said that the tribunal's decision amounted to "forcible suppression and censorship of what may be fringe ideas". 

The BSB's barrister, Winston Jacob, told the court, that the word "hysterical" was a "sexist stereotype and highly offensive" and had "no place in a court waiting area".

The High Court rejected the appeal. The judge said that Kwiatkowski's language "perpetuates well-known gender stereotypes", and ordered the barrister to pay the BSB’s £2,550 costs of the appeal.

Beaumont told RollOnFriday: "One must respect the findings of the High Court. However, speaking as lawyer rather than advocate, I remain very concerned about regulatory intrusions into freedom of expression."

"There has been a rapprochement in the area of social media expression: the BSB’s decision in the Joanna Toch case, and the Holbrook decision have achieved that," said Beaumont. "However, Mr Kwiatkowski's remarks were made in a waiting area in a far flung County Court. They were in the nature of pontificating musings."

"He used the expression 'hysterical woman'. No member of the public heard what he said," added Beaumont. "He upset one person. He is plainly not a misogynist. His remarks were loose-tongued and insouciant, and yet the very worst was assumed about him by the tribunal." 

"The High Court gave its blessing to the notion that a remark can diminish the reputation of the Bar in the eyes of the public even if not a single member of the public hears it," argued Beaumont.

"I took a straw poll before this case. Not a single man thought 'hysterical woman' was offensive. About 50% of women thought is was offensive, but far from all of them."

"What does 'the public' think?” asked Beaumont.

As requested, let the court of RoF decide. Cast your vote in this poll:

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Comments

Anonymous 01 July 22 08:17

he believed, as a generalisation, that "women tend to be more emotional than men," which is "a biological fact rather than an insult."

"persecuted for expressing inconvenient truths..."

Or as Jack Nicholson would say, "The truth?  You can't handle the truth."

I would love to see the scientific evidence for this.  Sadly there isn't any because it isn't true. It is a myth perpetuated by men to belittle and humiliate women and control their discourse. 

Anonymous 01 July 22 08:35

The remarks may be disagreeable to many, but its not a professional standards issue. And it is a restriction on freedom of speech. It will be interesting to see if he appeals this further. The bigger point is that a female barrister making derogatory remarks about men wouldn't be punished in this way.

Timothy 01 July 22 09:05

But he believed, as a generalisation, that "women tend to be more emotional than men," which is "a biological fact rather than an insult.” 

[...]

The barrister appealed the decision, arguing that the tribunal's decision violated his freedom of expression, and that he was being "persecuted for expressing inconvenient truths that do not square with Hard Left dogma."

Poor chap seems a little confused.

The idea that a woman is someone who has girly feelings (and that this is "a biological fact") is entirely consistent with "hard left dogma" in 2022. 

He should be a Labour MP.

Anonymous 01 July 22 09:43

I've heard much worse from most barristers I've had dealings with. If this sets a precedent, then a lot of barristers should be fined.

Anon 01 July 22 10:01

"I took a straw poll before this case. Not a single man thought 'hysterical woman' was offensive. About 50% of women thought is was offensive, but far from all of them."

And this shows the issue - men don't see anything wrong in calling women hysterical (despite the history of the word and its use to imprison inconvenient women in the Victorian era). I also loved the reference to "far flung county court" - much metropolitian snobbery there. So as long as you insult women in Bodmin, it's fine?

MC Question Man 01 July 22 10:06

Yo. Yo! YO!

Question Man spring to defend these remarks,

do it easy like Sunday walks in the park.

You see I'm RoF's brightest star, its main constellation,

Y'all marvel at my gifts for erudite conversation,

and when I say to you someone's a "hysterical woman",

you can know that it's true and that She Had It Comin'.

The bane of the life of these feminist vixens,

I get lots of complaints but I've had no convictions,

So let my boy Kwiatkowski's remarks slide,

I've got no rhymes for his name, Lord knows that I tried...

In no time he'll be cleared by the BSB,

Then it's out for drinks with Lord Lester and me.

 

[Producer's Note: Insert acoustic sample of Tim Westwood shouting "Drop the bomb" here, then some simulated explosion noises of the type that a child's toy army helicopter might make.]

Anonymous 01 July 22 10:19

"And this shows the issue - men don't see anything wrong in calling women hysterical (despite the history of the word and its use to imprison inconvenient women in the Victorian era)."

I think it's fair to say that most men, and probably most citizens of the British Isles, are largely unconcerned with the use of a particular word in a niche historical example from a period of time that ended well over one hundred years ago.

It's the people clinging on to that obscure historical detail as if it should somehow govern the use of a word today who are the odd ones.

Once again, this weird routine of self-styled 'progressives' going "Ah! But did you know that once upon a time, before living memory, someone once used this word in some disreputable way that we don't use it for anymore! Therefore nobody may ever use the word again" is completely absurd and it amazes me that people are still taking it seriously.

 

Next up - how we must never use the word "disappoint" in relation to a colleague's work because back in the 1500's it literally meant that you were sacking them and taking away their appointed positions, so people in the present day might suffer anxiety attacks and cry on Twitter when they hear it because of that deep dark legacy.

Feliks is a nice chap 01 July 22 10:30

 

Unlucky Feliks ole chum.

'There but for the grace of God' will be the thought of many a barrister this morning.

Anonymous 01 July 22 10:30

The response to this mans words shows us once and for all that not just women can be hysterical. It was an opinion, which unfortunately in my entirely subjective experience is fairly accurate. The pudding does tend to be eggier when prepared by the fairer sex. 

No Answer Woman 01 July 22 10:39

Toe-curling misandry and racism from Al Jolson @10.06. And this shows the issue, as someone said.

Anonymous 01 July 22 11:44

It’s well established that men and women have traditionally been socialised into specific and rigid gender roles. One of the expectations associated with that is that men shouldn’t be emotional while a damsel in distress is a rather endearing thing. It’s totally wrong and one of the reasons men have much worse mental health and propensity for suicide than women. It would also explain the dude’s perception based on his experience that women are more emotional than men. I don’t know if that’s true or not and the stereotype shouldn’t be perpetuated as it’s harmful to both genders, but expressing that as a sincerely held opinion shouldn’t be restricted by the BSB and the courts. I hope he appeals this further just for the free speech implications.

Anonymous 01 July 22 13:05

Surely the context behind the comment plays into the ruling that it diminishes public trust in the profession? He wasn't simply saying that women in general are "hysterical" or more emotional (which one can understand as an honestly held, albeit scientifically unsound and all round rubbish view).

He was saying that the tendency of women to be hysterical affected their professional capacity to be able representatives for their clients - specifically that "the number of incidents of overegging the pudding and just going overboard in a routine situation [have] multiplied" ever since more women have joined the profession.  

In view of that context, I think the straw poll focussed on whether the phrase "hysterical woman" is offensive or not is a bit of a red herring. I think question ought to be whether we're offended by the statement that female lawyers are less capable of reacting proportionately to "routine" situations (and therefore presumably less able to protect their clients' interests)... 

 

Sussex sol 01 July 22 13:35

Feliks is a likeable fellow. I'm pleased to see Roll on Friday has done this poll to demonstrate that (while he has undoubtedly divided opinion) there are plenty of people who think he's in the right.

Anonymous 01 July 22 14:08

@13.15 - what is sociopathic, why is it sociopathic and in what way do you think you perfectly capture it at 10.06?

Shame on our regulators 01 July 22 14:16

You may violently disagree with this individual's opinions, but the professional bodies have gone mad.

 

We are in a world where the Attorney General and the Lord Chancellor can demean us every day, publicly encourage the general population's hatred of lawyers, repeatedly lie about each and every issue in the legal world, be it the legality of acts of our executive, the actions taken by lawyers for their clients, or the criminal justice system, with our regulators doing or saying nothing. And then they hear about a random bloke saying a random idiotic thing to another bloke in a private conversation and they prosecute him for it.

 

What a world. 

 

Failed barrister Braverman and failed solicitor Raab have done far more to diminished the trust and confidence which the public have in lawyers than this chap ever could do in ten lifetimes. If he deserves a fine, then go and prosecute them.

 

Anon 01 July 22 15:02

@14:08 - what is "what is sociopathic?", what is "why is it sociopathic"? And what is "what way do you think you perfectly capture it at 10.06?"

And what is "10.06"?

Anonymous 01 July 22 15:33

@ Shame on our regulators 01 July 22 14:16

Agreed.

I wish those two would be struck off.  Bravermann probably should be.

Anon 01 July 22 15:48

Anonymous 01 July 22 15:32: what is this alleged Battle of Hastings? Please provide evidence that it happened. Is it a reference to Poirot’s side-kick, Captain Arthur Hastings? If so, why was he having a battle? And with whom?

Anonymous 01 July 22 16:23

"10.06 is 60 years before the Battle of Hastings"

... and 660 years prior to the Great Fire Of London.

No coincidence, you might think.

Anonymous 01 July 22 16:48

Apparently it's OK to be sexist in the regions, but not if you're going to do it in the RCJ?

Anonymous 01 July 22 18:32

@13.05 - it would only diminish public trust in the profession if the Bar Council agreed with him. They didn't though, he's just an individual expressing an opinion in the same way that some females (who don't get punished for it) express opinions that females are more capable than males. What diminished trust in the profession in this case was the punishment, not the act.

Anonymous 02 July 22 01:41

@18:32 I am curious to explore whether there are any limits to any member of the profession being able to express views without it diminishing public trust - so long as they say its just their individual opinion..?

What if he said that black lawyers in particular were generally more loud, aggressive, and abrasive rhan their non black counterparts? Might that not diminish public trust? 

As members of a profession we are rightly held to higher standard of conduct. He didn't express these views at a pub quiz with his mates. He told another barrister following a court hearing and his comments were specifically in relation to a witness statement in that hearing. Is he really therefore speaking just as an individual? 

The reality is that the standard that we walk past is the standard we accept. I don't doubt that others have said a lot worse in similar contexts without facing any consequences.

But as soon as it was reported, any failure of the Bar Council to act would have been tantamount to accepting that that sort of statement is acceptable.

Regrettably, it is clear from many of the comments here that actually do think that female lawyers are more emotionally labile and less able to exercise professional detachment.

It's very hard not to infer that this is the true motivator behind many of the comments suggesting this individual's right to free speech has been impaired. (It's a £500 fine form his regulator, not a punishment from the state...)

Anon 02 July 22 10:09

I am not a lawyer, but I have seen a vast number of over egged witness statements, or in other words lie after lie after lie, and I can see how this can be frustrating for legal representatives who are seeking justice via the truth. What the barrister should have done, was to highlight the parts of the statement that he considered were over egged, and provide evidence that the witness statement was falsely made. In the event that someone is exposing a false document, could then give rise to valid criticism. If the witness statement was validly made and the barrister had sour grapes because he knew he would lose, then its understandable that he would be upset, but if the WS was false, then the barrister had good grounds to criticise the WS and the author, if he could prove false statements.

So I think its all about the WS and the vernacular of the statement made in the context of the WS

The question is whether, if a man produced the WS, then what would he be called, I suspect a C....

 

Anonymous 02 July 22 13:09

@1.41 - I think its important to be able to differentiate between individuals expressing views we disagree with and the views of the profession as a whole. Individuals views only become damaging to the profession if professional bodies agree with those views. The profession is more likely to be damaged if its punishes people for expressing their views. Its always more difficult to support the right of people to express their views if we don't agree with those views. In your case a better example to have given might have been that of a female lawyer saying that male lawyers were generally more loud, aggressive and abrasive than their female counterparts - would you suggest that a female lawyer saying these things would be damaging to the profession and that the female lawyer saying these things (or any other things criticising males in general) should be punished?

Anonymous 02 July 22 14:39

RoF, for accuracy, I hope you are ensuring that only women's votes are taken into account when counting the results of your poll. Because it's not for men to decide what is or what isn't offensive to call a woman, in other words it's not for men to tell women how the women should or should not feel when being called "hysterical".

Anonymous 03 July 22 09:02

"It's a £500 fine form his regulator, not a punishment from the state..."

Your friendly daily reminder that unless Boris Johnson himself comes round to your house and stitches your lips together, it isn't real censorship.

Being censured by a regulator which derives its entire authority and ability to exist from the powers granted to it by statute doesn't count and has no freedom of speech implications at all.

Paul 04 July 22 11:50

It's difficult to know where the line lies when 'hysterical woman' is wrong but 'stroppy teenager of colour' is OK (albeit, that was a close one).

It's unfortunate that a fairly innocuous comment can get you in a lot of trouble.  

Zero tolerance sounds great until you find yourself at the receiving end.

Anon 04 July 22 14:35

So how about sleeping with your client, and charging her for it, is that bringing the profession into disrepute ? or even fraud. See link below

https://topnews.in/client-claims-top-uk-barrister-charged-her-250-pounds-hour-even-having-sex-2144376

The question is, if the sex is no good, is that then negligence ?

Anonymous 06 July 22 07:26

4th @ 14.35 - again, its only bringing the profession into disrepute if claims are true the Bar agrees with the actions being alleged.

Hysterical woman 07 July 22 00:21

Whilst the fact that someone who appears to be so confused by the distinction between a “biological fact” and his own personal observations (or in my own personal opinion fundamentally archaic, sexist and clearly deep rooted beliefs) has succeeded in such an intellectual profession is concerning, I do nevertheless think the approach taken here is disproportionate. 

The particular choice of the word “hysterical” does serve as an uncomfortable reminder of a not too distant past where women were deemed too ruled by emotion and their wombs, but his poor choice of word and plainly incorrect opinions just show his lack of education (or probably more accurately desire to be educated on this topic). 

He is entitled to hold his sexist beliefs, and even to express them (so long as he doesn’t cross into the territory of discrimination). Expressing your misogynistic shortcomings to a colleague, when not directed at that specific person might be inappropriate and mildly offensive (and doesn’t win you any friends) but that is all it is. We can’t punish every person who expresses something mildly offensive.

Clearly I do not want to encourage sexist or other offensive language or rhetoric at the bar, but there has to be another way of going about this. 

Anon 07 July 22 11:28

Anonymous 06 July 22 07:26: Whilst the claims have to be found true, the Bar doesn’t have to agree with them for those claims to bring the profession into disrepute as a matter of law.

Anonymous 07 July 22 17:58

No Answer Woman 04 July 22 12:21 - Al Jolson 1st July 10.06's misandry and racism. Everyone's toes. The issue that someone referred to.

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