The waste management firm Biffa has accused the Scottish government of giving it “unequivocal assurances” that the country’s Deposit Return Scheme (DRS) would go ahead, as it seeks £166 million in damages over the project’s collapse.
Speaking at the Court of Session in Edinburgh, Biffa chief executive Michael Topham said a 2022 letter from then circular economy minister Lorna Slater had provided “certainty” that the scheme would proceed, prompting the firm to commit tens of millions to the project.
“It was so unambiguous and emphatic,” he told the court. “It provided me with certainty there was no doubt it was going ahead.”
Biffa was contracted by Circularity Scotland Limited (CSL) to handle the logistics for the Scottish DRS, including the collection and processing of bottles and cans. The company invested around £51 million in infrastructure such as sorting equipment, expecting to make more than £114 million in profits over a decade.
However, the scheme was put on hold in 2023 after the UK government ruled that including glass bottles would breach the Internal Market Act, a decision that led to CSL entering administration and Biffa’s contract being terminated.
The Scottish government’s lawyers have argued that Biffa’s decision to invest ahead of launch was a “commercial risk” the firm “chose to take.”
The case – Biffa Waste Services Limited v The Scottish Ministers – centres on whether the government owed Biffa a duty of care and whether assurances in Slater’s letter amounted to negligent misrepresentation.
According to law firm Dentons, the court has allowed the case to proceed to an evidential hearing, meaning Biffa will still need to prove the government assumed responsibility and that its actions directly caused the company’s losses.
The hearing, expected to last eight days, will also hear from Slater and former Scottish secretary Alister Jack, who played a key role in blocking the scheme.
A UK-wide DRS is now planned, but is not expected to launch before October 2027.