A barrister who referred to a ‘hysterical woman’ in a post-case chat with the other side’s barrister has opened his appeal against a £500 fine from his regulator.

Feliks Kwiatkowski admits using the words to refer to the conduct of a legal executive on his opponent’s side, but argued today that the Bar Standards Board had ‘used a sledgehammer to crack a nut’ by prosecuting him for perceived professional misconduct.

Kwiatkowski, who was called to the bar 45 years ago, was reprimanded by the Bar Tribunals and Adjudication Service in February and fined £500.

Setting out his appeal before the High Court today, the barrister’s representative Marc Beaumont argued that the ‘hysterical woman’ comment, as well as a reference to female lawyers being ‘intemperate’, could not have reduced the trust and confidence of the public because no member of the public was present for the exchange.

Beaumont said: ‘It is completely contrived to say, as the tribunal did, that had a member of the public been present then potentially they would have had their trust and confidence diminished.

‘The other barrister [present in the room who heard the comments] could not possibly possess or be regarded as possessing the lay view of the public. The public can’t be a theoretical and absent public – if that is the correct approach then a barrister in an empty room talking to himself about a so-called hysterical woman could still be prosecuted by the BSB which is obviously a nonsense.’

Beamont rejected the tribunal’s view that the language used was sexist and discriminatory and said this had not been alleged by the BSB. The word ‘hysterical’ was not considerate or even reasonable, he argued, but fell well short of the threshold for unlawful discrimination.

He added: ‘Many members of the public would say they use the word hysterical all the time and adding it to the word ‘woman’ makes little difference.’ He said this type of verbal exchange between barristers was common and not the job of the regulator to police, suggesting that such banter was a ‘natural feature of a vigorous adversarial contest’.

‘Barristers have been sparring outside court for as long as someone of my call can remember. Undoubtedly they are human beings and say, on occasion and including when speaking to another barrister, things that anybody else may see as insensitive or undiplomatic.’

Beaumont added that, faced with such opinions from another member of the bar, ‘most female barristers would stand their ground and if they disagreed would try to persuade him to a different view or simply told him to pipe down’.

Kwiatkowski’s other representative, Shivani Jegarajah, accused the BSB and tribunal of ‘forcible suppression and censorship of what may be fringe ideas’. She added: ‘What is lost here is the question of rights for the barrister and the question of his freedom to say things which are unpopular.’

It was reported by the tribunal that Kwiatkowski had said: ‘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.’

Winston Jacob, representing the BSB, told the court that members of the public did not need to be present for barristers to act in a way that did not diminish the public’s trust and confidence.

He said that the word hysterical was a ‘sexist stereotype and highly offensive and has no place in a court waiting area’.

The disciplinary process, he stated, ‘made it clear that expressing irrelevant, offensive and discriminatory views in a professional context is unacceptable’.

Addressing whether the female barrister involved in the conversation should have told him to stop, Jacob added: ‘[Barristers] shouldn’t have had to stand their ground and tell [Kwiatkowski] to pipe down as he shouldn’t have said it in the first place. She shouldn’t have been put in this position. She did say it was inappropriate but he continued – he shouldn’t simply be able to hold forth on the basis that someone can challenge him.’

In response, Beaumont said the tribunal’s decision ‘had spawned a tell-tale approach amongst barristers and it is time for the judiciary to draw a line and exemplify the fact that telling tales about barristers is unreasonable in itself