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Judge gives reasons for refusing quarantine challenge

Narinder Hargun, the Chief Justice (File photograph)

A bid to temporarily block mandatory quarantine laws for travellers not vaccinated against Covid-19 was rejected because the applicants failed to show that they would suffer “irreparable harm” under the proposed law.

At a hearing last Friday three people – Albert Brewster, Vincent Lightbourne and Wendy Warren – called for an interim injunction against Government’s plan to force non-vaccinated residents who returned from overseas to pay for quarantine in a hotel.

Chief Justice Narinder Hargun turned down the request, and provided reasons for his decision in a written submission.

During last week’s hearing, lawyer Mark Pettingill claimed that the trio would suffer financial losses under the law because they would have to pay for an enforced 14-day stay at a hotel at a cost of around $3,500.

He also argued that they would suffer emotional distress by being isolated during quarantine.

But in his written response, Mr Justice Hargun pointed out that none of the applicants provided any evidence that they intend to leave the island – and so would not be affected by the law or harmed by it.

He said: “It is to be noted that none of the applicants in their affidavits assert that they or their children have any fixed plans to travel to or from Bermuda within the next eight weeks or so.”

Defining irreparable harm, Mr Justice Hargun said: “It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

“On the basis of the affidavit evidence filed by the Applicants, in support of the application for an interim injunction, the court is of the view that the applicants have not demonstrated that unless the court grants the injunction sought they will suffer irreparable damage during the next eight weeks.

“In short, there is no evidence that the applicants have any fixed plans which will subject them or their overseas family members to the mandatory quarantine within the next eight weeks.

“Secondly, all three applicants rely upon, as evidence of irreparable harm, the additional cost of approximately $3,500 required to stay at the designated hotels during the mandatory quarantine.

“Monetary loss, by its very nature, is unlikely to be irreparable. Accordingly, the Court concludes that the monetary loss of approximately $3,500 does not constitute ʽirreparable’ harm.

“In any event, this additional cost is potentially recoverable from the Government, under section 15 of the Constitution, in the event the Applicants were to succeed in their Constitutional challenge.

“Thirdly, Mr Pettingill in his oral presentation to the Court relied upon the potential deleterious effects on the Applicants physical and psychological health associated with the 14 days mandatory quarantine at the designated hotels.

“However, there is no ʽevidence’, as opposed to speculation, in this regard which the court can properly accept. Speculative arguments in this regard are incapable of establishing ʽirreparable’ harm.

“In light of the ruling that the applicants have failed to establish irreparable harm this application for an interim injunction cannot succeed and stands to be dismissed.”

The quarantine rule was meant to come into force last Sunday, but will now not take effect until this Sunday.

A substantive hearing on the case will be held on July 7.

Constitutional Freedom Bermuda, a pressure group which is funding the legal challenge, has requested an audio recording or written transcript of last Friday’s hearing.

CFB claimed lawyers for the Government “ambushed” the hearing with an announcement that the more virulent Brazilian or Indian strain of the coronavirus had been detected from last Thursday’s British Airways flight from London.

In a statement CFB said: “Delroy Duncan QC indicated to the court that Dr Carika Weldon, head of the Bermuda Government Molecular Diagnostic Laboratory, had advised that a Brazilian or Indian variant arrived on the island via a passenger on the British Airways flight that landed on June 2, 2021.

“Interestingly, the Covid-19 cases confirmed by the Government since the June 4 2021 did not come from the British Airways flight and contrary to the position advanced during the hearing, the Government have not announced the presence of an overseas variant.

“We find it extremely concerning that the Government has remained silent on this blatant contradiction. In the interest of transparency and accountability, we look forward to receipt of the audio recording and/or written transcript in due course.”