Deposit return scheme ‘misrepresented’ to waste firm by ministers, court told

Ministers “negligently misrepresented” a present collapsed drinks instrumentality instrumentality strategy to a discarded absorption institution to transportation it to motion up, a tribunal has heard.

Waste disposal institution Biffa is suing the Scottish Government for a sum successful the portion of £160 million, pursuing the determination to scrap the projected deposit instrumentality strategy (DRS).

The discarded absorption firm, which was selected arsenic the “logistics partner” for the scheme, said it invested “significant sums” successful mentation for it earlier it was scrapped.

The DRS, which was intended to travel into unit connected August 16 2023, would person seen shoppers charged a deposit erstwhile buying drinks successful cans and bottles, which would beryllium repaid to them erstwhile bare containers were returned.

However the Scottish Government changed its plans erstwhile UK ministers utilized the Internal Market Act (IMA) to regularisation solid bottles could not beryllium included.

Biffa wanted and asked for assurances. The curate was not required to springiness them, but she voluntarily chose to bash truthful due to the fact that she wanted Biffa connected board

Roddy Dunlop KC, to the court

Roddy Dunlop KC, representing Biffa, told the Court of Session successful Edinburgh connected Friday that his lawsuit had received “negligently misrepresented” assurances from Government ministers to transportation it to hold to present the logistical constituent of the scheme.

He said ministers were keen to get the steadfast connected committee for governmental arsenic good arsenic applicable reasons, telling the tribunal the Government was alert that without a logistics supplier the strategy would person been “dead successful the water”.

He told the tribunal a missive to the institution from past circular system curate Lorna Slater with assurances astir the viability of the strategy withheld “special knowledge” that it was inactive awaiting support from the IMA, and that determination was a hazard of it not happening astatine all.

He said this resulted successful his lawsuit entering into an “onerous contract” that committed it to “tens of millions of pounds” of expenditure.

He added that if his lawsuit had known the “truth” of the situation, it would not person signed up to it.

He told the court: “Biffa wanted and asked for assurances. The curate was not required to springiness them, but she voluntarily chose to bash truthful due to the fact that she wanted Biffa connected board.

“She indispensable person known – for wherefore other would they person asked – she indispensable person known that Biffa would trust connected what she said.

“The curate knew the presumption regarding IMA approval. We accidental the curate had peculiar knowledge.

“We accidental that successful the authorities of that peculiar knowledge, the curate persuaded, so exhorted, (Biffa) to participate into a declaration which committed them to important fiscal outgoings.”

He besides described arsenic “remarkable” the evident information ministers subsequently made nary effort to “cure oregon correct” the situation, connected the grounds it would person been “politically inexpedient” to bash thing to halt the steadfast “haemorrhaging money”.

Mr Dunlop besides explained the scope of the ineligible challenge, saying: “No-one is asking the tribunal to presume to question the DRS, oregon the determination to inset it.

“But what the tribunal tin bash is determine whether the curate was negligent successful the mode successful which the argumentation was brought in.”

Gerry Moynihan KC, representing the Scottish Government, repeated his calls from time 1 of the proceeding connected Tuesday for the lawsuit to beryllium dismissed.

He said the determination by Biffa to commencement spending wealth connected the strategy was a “commercial risk” the institution had “chosen to take”.

He added that immoderate assumptions the institution made astir the scheme, including that it would proceed “as proposed” connected August 16, 2023 and that it would see glass, were made astatine its “own risk”.

Judge Lord Clark said a ruling successful the lawsuit volition beryllium made “as soon arsenic reasonably possible”.

A UK-wide DRS is not owed to commencement until precocious 2027.

Following the tribunal hearing, a spokesperson for Biffa said: “Biffa was selected by Circularity Scotland Limited arsenic the logistics spouse for the transportation of the Scottish deposit instrumentality strategy and invested important sums to enactment its timely and palmy implementation.

“This was done successful bully religion and aft receiving assurances from the Scottish Government.

“Having cautiously reviewed our presumption with our advisers, we judge it is due to instrumentality this ineligible enactment to question compensation for the losses Biffa has incurred.

“Given the enactment is ongoing, we are incapable to remark immoderate further astatine this time.”

The Scottish Government said it could not remark connected ongoing litigation.