The Government has challenged a Supreme Court ruling that it acted unlawfully when setting up an online shopping and shipping platform in partnership with an overseas company.

The project, in which the government-run Bermuda Post Office teamed up with the US courier Access USA Shipping LLC to import goods purchased online to island consumers, was announced by the Cabinet Office minister at the time, Wayne Furbert, in November 2020.

In discussing the scheme three years ago, Mr Furbert criticised island retailers for failing to meet customer demand, insisting that the Government had stepped in to provide the public with a much needed service.

He also dismissed claims by island couriers that the Government should have put the contract out to tender before signing a deal with a US supplier.

The contract was challenged by the local courier company Mailboxes Unlimited, which has an outlet in the US and argued that the Government was subsidising a foreign company to the disadvantage of Bermudian firms.

In a ruling last August, Puisne Judge Larry Mussenden declared that Government’s contract with the foreign courier was “unlawful” because it had failed to abide by its own procurement code.

He also asked the Government to provide details of its contract with Access USA to establish how it could be terminated.

The Government has filed an appeal against that ruling on eight grounds.

MyBermudaPost service will continue to operate at least until legal proceedings have concluded.

According to the Government’s Notice of Appeal, filed by the Minister for the Cabinet Office and the Postmaster General, Mr Justice Mussenden was wrong to rule that Mailboxes had sufficient interest to bring judicial review proceedings against the Government, and that it filed proceedings within the six-month time limit.

The appeal also claims that the judge was wrong to rule that the Government “was required to satisfy a duty of candour”, which, it is claimed, “shifted the burden of proof from Mailboxes to the Government”.

Mr Justice Mussenden was wrong, the appeal continues, to conclude that there had been a procurement in the first place “in circumstances where there was no evidence to justify that finding and when, on the basis of the case argued by Mailboxes, no such procurement existed”.

“The judge should not have speculated that a procurement existed because a payment to Access was mentioned by the minister,” the appeal stated.

The notice also claimed that Mr Justice Mussenden erred when he said that Mailboxes had a legitimate expectation that the Government would follow its own procurement regulations before entering a contract with a third party.

The appeal read: “In truth, no legitimate expectation existed and therefore no legitimate expectation could be unlawfully departed from.”

According to the notice, the Government is asking that Mr Justice Mussenden’s ruling be set aside and that Mailboxes’ application for a judicial review be dismissed.

The Government has not responded to requests from this newspaper for further information on the matter.

Bricen Hakeman, the chief executive of Mailboxes Unlimited, did issue a statement condemning the latest legal development.

Mr Hakeman said: “MyBermudaPost and the Government have appealed the court’s decision stating that Justice Mussenden did not have the authority to make such ruling.

“As litigation is ongoing, I will remain largely moot on public commentary, but what I will say is that it is incredibly disheartening to see the Government’s appeal of Justice Mussenden’s decision.

“The Government made a conscious decision to withhold evidence during judicial review, namely the relevant procurement contracts, and is now upset with the court’s consequential decision.

“What is even more disappointing is the Government’s disdain towards Mailboxes, a Bermudian business with 95 per cent Bermudian staff, a strong record of community contributions and a local entity interested in providing these types of essential services to the Government.

“Instead, the Government's actions suggest it would prefer to stifle Bermuda’s private sector in favour of a foreign entity, which fails to contribute, reinvest or engage in bettering our island’s community — culturally, educationally or economically.”