Slater gave ’emphatic’ assurance to Biffa on deposit return scheme, court told

A waste firm suing the Scottish Government over its bottle return scheme has said it was “provided with certainty” that the plan would go ahead.

Biffa Waste Services is looking for £166 million of reparations over the decision to delay the deposit return scheme (DRS) in 2023.

Speaking in the Court of Session in Edinburgh on Tuesday, Biffa chief executive Michael Topham said a letter in May 2022 from then Government minister Lorna Slater had offered assurances that the scheme would proceed.

He said: “It was so unambiguous and emphatic. It provided me with certainty there was no doubt it was going ahead.

“I read it as a very unequivocal reassurance about their commitment to the scheme.”

He also claimed it applied “pressure somewhat on us to conclude the contract and move ahead”.

The Scottish Government changed its plans for the scheme when UK ministers used the Internal Market Act to rule glass bottles could not be included.

A UK-wide DRS is planned but it is not expected to begin before 2027.

Circularity Scotland, which was set up to administer the Scottish DRS, fell into administration in June 2023 and Biffa’s contract was terminated.

The company said it expected to make profits of £114.8 million over 10 years through the contract and it invested £51.4 million in assets like sorting machines as it prepared for the “go live” date.

The Government’s lawyers have previously said the decision by Biffa to start spending money on the scheme was a “commercial risk” the company had “chosen to take”.

At the court on Tuesday, Mr Topham said he had not been told of the UK government’s position on internal market rules that could have impacted the scheme going ahead.

He said if he had been told, he would have made signing the contract conditional on having an exemption in place.

Mr Topham was questioned by Gerry Moynihan KC on behalf of the Scottish Government.

He asked Mr Topham about the importance of the letter from Ms Slater as Biffa had taken out taken out insurance with a premium of more than £3 million.

Mr Topham said insurance was taken out due to concerns about delays to the scheme.

Mr Moynihan also questioned Mr Topham on the absence of the letter in board meeting notes the following day. Mr Topham said he had told the board about the letter.

The Court of Session hearing is set to last eight days and will later hear evidence from Green MSP Ms Slater and Lord Alister Jack, who was Scottish secretary at the time the scheme was shelved.