Biffa £166m compensation claim over deposit return scheme 'good to go'
Roddy Dunlop KC made the statement during a procedural hearing on Thursday in an action brought against Scottish ministers by Biffa Waste Services Ltd.
The company has raised an action at the Court of Session in Edinburgh over a decision made by ministers to delay the introduction of the deposit return scheme.
It alleges that Lorna Slater – the former minister for green skills, circular economy and biodiversity – gave negligent assurances to the firm in a letter about the initiative to ensure its participation.
Biffa's lawyer Roddy Dunlop KC told judge Lord Clark last year that the correspondence made no reference to how Holyrood would need its Westminster counterpart to give the final go ahead to the scheme.
The scheme was later scrapped after the Conservative government in London refused to give the go ahead for it be implemented.
The firm believes the Scottish Government 'negligently misrepresented the assurance it gave' to Biffa.
Biffa has instructed Mr Dunlop, the Dean of the Faculty of Advocates, to act for it in the £166.2m compensation claim.
Judge Lord Clark gave permission for the action to proceed following a two day hearing last year when the Scottish Government's lawyer Gerry Moynihan KC asked the court to dismiss the action.
On Thursday, the case called again for a procedural hearing before judge Lord Sandison.
Mr Dunlop said he and his legal team were making preparations for the case which is expected to be heard in the Court of Session over an eight day period in October 2025.
Mr Dunlop added: 'The case is now simplified and good to go.'
The deposit return scheme was a key policy of the former SNP-Green administration.
Under the plans, a 20p deposit was be added to all single-use drinks containers made of PET plastic, metal or glass. Consumers could reclaim the deposit by returning the containers to retailers or to specially-designed reverse vending machines.
It was due to be introduced in August 2023 but the launch date was pushed back, with then first minister Humza Yousaf citing concerns from businesses.
The Conservative government at Westminster refused to grant the scheme the go-ahead unless it conformed to a UK-wide approach which excluded glass.
In June 2023 Slater said she had no choice but to delay the scheme until at least October 2025, accusing the UK government of sabotage.
She left government last year following the collapse of the Green-SNP power-sharing agreement.
The company have decided to go to the Court of Session in Edinburgh because it believes the Holyrood government is responsible for it incurring a £166.2m loss.
It wants compensation for the cash it invested in the collapsed deposit return scheme and the subsequent loss of profit.
At the proceedings last year, Mr Moynihan said the Scottish Ministers acted lawfully and that the government did not act a duty of care to Biffa.
He also said the letter sent by Ms Slater – which was dated May 17 2022 – did not amount to a 'negligent representation'.
Speaking on the final day of a two day long hearing into whether the action should proceed, Mr Dunlop outlined the alleged actions of Ms Slater in dealing with his clients.
Mr Dunlop said: 'Our position is that we did sign the contract in a situation of the assumption of responsibility.
'The minister was not required to give an assurance but she voluntarily did.
'She did so because she wanted Biffa on board. She must have known Biffa would act upon what she said.
'It is writing a letter that provides the assurances that not reflect the actuality of the situation.
'We know why she decided to write that letter. She wrote that letter as she needed the deposit return scheme to have a purpose.
'She needed a contractor like Biffa – who was swithering about whether to become involved – to become involved.'
Mr Dunlop also claimed that Ms Slater's purpose in writing the letter to Biffa was to ensure the scheme's success.
He added: 'The simple fact of the matter is that the Ministers were very keen to have Biffa on board.
'It was important for them politically and logistically to have a well resourced contractor like Biffa on board.
'Without that the deposit return scheme was dead in the water.'
On Thursday, Lord Sandison fixed a date for another procedural hearing in the case – this will take place on September 2 2025.
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