Deposit return scheme case against SNP government thrown out by court amid 'wishful thinking'
Scotland’s deposit return scheme has been paused by ministers
A waste company has had its bid to sue the Scottish Government over the bungled deposit return scheme for more than £50m thrown out by the courts.
Biffa, which invested millions on the proposed scheme which collapsed after an intervention by former Scottish Secretary Alister Jack over whether to allow glass to be included, argued a letter from former Greens minister Lorna Slater in 2022 was a guarantee that the DRS would go ahead as expected.
The company claimed that Ms Slater’s letter “amounted to a negligent misrepresentation” and sought £51.4m in damages from the Scottish Government. Biffa argued the letter “provided assurances in respect of the viability of the scheme”.
But Lord Sandison has dismissed the claim, comparing Biffa’s argument the letter represented a guarantee the DRS would go ahead to “wishful thinking”. He concluded that Ms Slater sending the letter was a “voluntary act”.
The row emerged after Lord Jack refused to give an exception to the controversial internal market act (IMA) to the Scottish Government that would have allowed glass containers to be included in the scheme, as was initially proposed for a DRS across the UK.
In May 2002, when Ms Slater was the minister in charge of rolling out the DRS, she wrote to Biffa after the Scottish Government was forced to delay the rollout of the scheme by 12 months.
In the letter, Ms Slater pointed to the Scottish Government’s “unwavering” commitment to the scheme.
She added that Biffa signing a contract with the now defunct Circularity Scotland Ltd (CSL), which went bust when the DRS fell apart, “would be a major vote of confidence in both CSL and DRS, and help to maintain and increase momentum towards successful delivery”.
Biffa did not become aware of the impact of the IMA question on the scheme until February 2023. Scottish Government officials had been made aware about the potential issue in 2021 and the risk had been raised with MSPs, including Ms Slater’s then Greens co-leader Patrick Harvie, as far back as 2020 in a letter from a Holyrood committee to Michael Gove.
READ MORE: SNP under fire for 'costly wasted opportunity' to cut waste and boost re-use and recycling
In his judgment, Lord Sandison said: “I do not accept that a reasonable person could have looked at the words used in the letter and taken them either as amounting to a general statement that there was no risk that the scheme would not be proceeding and that all would be well, or to the more nuanced statement about legislative sufficiency.
“It is, indeed, difficult to see how such a person could have taken that the message being conveyed was anything more than was being frankly stated.
“Something much more than the wishful thinking upon which the pursuer’s case appears to proceed in this regard would be required, indeed something approaching the alchemy capable of transmuting base metal into gold, so far are the words used from the meaning which the pursuer requires.”
He concluded that Biffa’s “case based on the letter fails in practical terms”.
Lord Sandison added that the company’s “case based on negligent misrepresentation in the letter fails in fact and law”.
A Biffa spokesperson said: “We note today’s decision and are reviewing our position with our legal advisors.”
The Scottish Government has been approached for comment.
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