Judge dismisses argument that the sanction infringed on freedom of expression
A veteran barrister fined £500 for describing a female lawyer as a “hysterical woman” has failed in a High Court bid to overturn the sanction.
Feliks Jerzy Kwiatkowski was hauled up by the bar disciplinary tribunal earlier this year for his “sexist and discriminatory” language at Worthing County Court in 2019, which also included a comment about women being “intemperate”.
A senior judge has now rejected an appeal after a two-day hearing at the Royal Courts of Justice.
Speaking ahead of the hearing, Kwiatkowski framed the proceedings as a free speech issue. As the son of refugees from then-Communist Poland, he saw “the creeping advent of exactly the type of society from which his own parents fled”. His case was supported by the Free Speech Union.
The court heard that the case raised a “significant issue of principle” and the sanction breached Kwiatkowski’s freedom of expression rights at common law and the European Convention. His barrister, Marc Beaumont, argued that the idea that women are more emotional than men “may be wrong and it may have been expressed in too much of a generalised way, but it was undoubtedly an opinion”.
The appeal arguments also included the proposition that Kwiatkowski was not “likely to diminish the trust and confidence which the public places in you”, as the misconduct rules require, when there was no member of the public within earshot at the time.
But Mr Justice Choudhury held that there was no requirement for there to be a lay member of the public physically present to trigger the public confidence rule. He went on to describe the comments as an “unambiguous slur”, according to a report on the ex tempore ruling in the Law Society Gazette.
Commenting on the effect of the ruling, Beaumont told Legal Cheek:
“The things that citizens might permissibly say cannot be uttered by barristers outside court. The BSB and the tribunals can decide what we are permitted to say, projecting themselves into the mindset of the public, even when no member of the public is present to hear what is said.”