A court has thrown out a £50m compensation claim against the Scottish government over its doomed deposit return scheme.
Waste management firm Biffa won a contract as part of plans to bring in the scheme, and later took ministers to court when the initiative was shelved.
Biffa had been seeking £51.4m in damages at the Court of Session to cover losses it said it had incurred through the project’s failure.
In a ruling published on Friday, Lord Sandison found against the firm.
His judgment read: “The court is not concerned with the question of who (if anyone) ought to be regarded as bearing political responsibility for the failure of the Scottish deposit return scheme to launch in August 2023.
“Rather, it is only concerned with the legal questions of whether the defenders owed a duty of care to the pursuer in either of the regards contended for, and, if so, whether any such duty was breached and loss was thereby caused to the pursuer.”
Biffa had argued that former Scottish Greens co-leader Lorna Slater – who was the minister in charge of the project – made a “negligent misrepresentation” in a letter she sent the company which “provided assurances in respect of the viability of the scheme”, but did not mention the Scottish government would need an exemption from the UK government to the Internal Market Act (IMA) for it to go ahead.
Westminster legislation governs trade between the different parts of the UK post-Brexit.
Then Scottish secretary Lord Jack refused to grant an exemption to the Scottish government – which meant Holyrood ministers could not proceed with plans to include glass bottles in their scheme, and ultimately left them unable to bring in deposit return as planned in August 2023.
A deposit return scheme (DRS) sees shoppers charged a deposit when buying drinks, with the cash returned to them when they bring their empty cans and bottles back for recycling.
Biffa had argued the letter of “comfort” it received from MSP Ms Slater in May 2022 had negligently misrepresented the true level of risk facing the project as it failed to mention the need to secure an IMA exemption.
Read more from the court case:
Slater gave ’emphatic’ assurance about DRS, court told
Scottish government ‘utterly irresponsible’ over DRS, court told
UK government blocked DRS to give SNP ‘black eye’, court told
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Lord Sandison made clear he did “not accept that a reasonable person could have looked at” the letter sent by the then circular economy minister and taken it as “amounting to a general statement that there was no risk that the scheme would not be proceeding and that all would be well”.
He therefore ruled the Scottish government “did not breach the duty incumbent on them”, adding: “The matters which they stated in the letter were true and accurate.”
Lord Sandison concluded the firm’s case “fails in fact and law”.
A spokesperson for Biffa said: “We note today’s decision and are reviewing our position with our legal advisers.”
The Scottish government said it would “not be appropriate” to comment on live legal proceedings.
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A Scottish Green spokesperson said what happened with the DRS showed “the worst of Westminster”.
They added: “MSPs voted to introduce a recycling scheme, with businesses investing money to make it happen.
“There are bottles, cans and glass littering our parks, beaches and streets. This scheme would have led to more of them being recycled.”
