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.
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