Wigan gym boss loses legal fight over Covid-19 closure order

A judge has said Majestic Gym in Pemberton must shut after director Kevin Harper continued to keep the premises open during lockdown.

Friday, 12th March 2021, 4:32 pm
Updated Friday, 12th March 2021, 7:06 pm

Wigan and Leigh Magistrates' Court heard Harper "deliberately" and "flagrantly" refused to shut his business despite tough stay-at-home regulations being brought back into use across the country in January.

Attempts were made to discuss the matter with him before Wigan Council finally served notice of a closure order application on Majestic Gym on March 6.

But Harper, 45, said he had followed the legislation "to a tee" and accused the local authority and Greater Manchester Police (GMP) of acting on guidance rather than law.

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Kevin Harper, director of Majestic Gym
Kevin Harper, director of Majestic Gym

He said he had only operated where there were legal exemptions to the blanket shutting of gyms, including opening for filming purposes, organising supervised activities for children and training elite athletes.

However, District Judge Margaret McCormick said she did not find Harper's account credible and ordered the gym should now be shut until 4pm on April 30.

Giving her findings, she said: "I don't accept the respondent is genuinely working within the exemptions.

"I find Mr Harper was attempting to exploit the exemptions in order to protect his livelihood. Some people may sympathise with that but other businesses have had to abide by it and he is no exception,.

Majestic Gym in Pemberton

"If someone doesn't comply with their legal duty it puts members of the public at risk. We're in the middle of a pandemic with over 100,000 individuals dead, sadly, and attendance at gyms could very easily have led to the spread of the coronavirus, leading potentially to loss of life.

"The local authority consulted with the health department and they supported this application."

The district judge concluded there was a lack of evidence to Harper's claim about putting on children's classes at the gym located at the Lion Business Centre and said police were turning people away at 5.25pm when they attended in January, considerably after the 5pm start time given by Harper.

The closure order means the gym is completely shut, with even elite athletes who are allowed to train in lockdown now unable to enter the premises.

It also prevents anyone other than the emergency services entering without prior permission, including Harper, and gives the council the power to board the building up and change the locks should that be deemed necessary.

The district judge said the closure was necessary as it was quite clear to her that the gym would remain open if the order was not put in place.

However, should gyms be allowed to re-open before April 30 the order can be reviewed.

Wigan Council's barrister Ben Williams brought up in court social media messages in which Harper used a swear word about the police and local authority and suggested the gym was open for people to attend.

Harper claimed some of his online output in recent weeks was deliberate misinformation due to problems with information being leaked, but the district judge did not accept this version of events.

The court heard that Majestic Gym had been filming training sessions and classes, with Harper saying this was because people had signed up to an online service so they could work out at home with the videos when they were posted on a Facebook group for the gym.

He told the court he had needed to diversify his business in the pandemic to ensure it survived.

The court heard numbers had been limited to ensure there was social distancing and the premises were thoroughly cleaned.

However, the court was also told Majestic Gym's opening hours had changed very little on account of the lockdown, something the judge noted in her findings.

The judge also spoke about Harper telling people who attended to mention the exemptions if police asked them what they were doing.

She said: "I think it's significant that no member of the public, when challenged by the police, maintained their exemption status. One individual said he was there for a chat."

In a series of occasionally-heated exchanges Mr Harper questioned the legitimacy of the actions taken by GMP officers and Wigan Council's public protection manager Michaela Guest and also queried the accuracy of their versions of events.

Mr Williams also clashed with Harper over the videos he was posting on social media and whether or not this should count under filming as an exemption.

Mr Williams referred to the spirit of the law in his submissions and suggested Harper was attempting to find ways round it.

Addressing the court, he said: "Exemptions are there for a purpose. It's abundantly clear that this is for the deliberate and genuine making of a film or television programme. This is not, with all respect, what he is doing.

"This is not the making of a film, this is incidental filming of something.

"Overall the guidance is looking for restrictions of movement and of business. Mr Harper is saying: 'You are not going to restrict me other than I have to clean a bit more.'

"That is a deeply unattractive position.

"The same goes for the childcare. What he is doing is not supervised activity but just running a normal class. That is not what these exemptions are guided towards."

However, in his submissions to the court Harper maintained he had done nothing wrong and it was the authorities who were mistaken in their interpretation of the coronavirus regulations.

He said: "I don't care about the spirit of the law, I have followed the legislation to a tee.

"I have done nothing against the law.

"They cannot prove that I have contravened legislation, although police officers and Wigan Council employees have incorrectly applied guidance to turn people away. They have failed to distinguish between legislation and guidance.

"There may be grey areas in the guidance but that's just guidance. We have been open legally, within the legislation. At no point is there evidence we have broken legislation."

As the judge found in the council's favour Harper will now have to pay costs. Discussions over the amount took place in court but the judge did not read out the final sum.

Harper suggested during proceedings that he intended to appeal should the decision go against him. He now has 21 days to contact the Crown Court to contest the findings.

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