AN OVER £150 million legal action against the Scottish Government launched by waste firm Biffa has been allowed to proceed.
The news comes after a ruling from Lord Clark at the Court of Session announced on Tuesday.
Biffa are looking to recoup money lost after investing in the Deposit Return Scheme (DRS) before it eventually fell through.
The Scottish Government initially designed its own DRS, but its launch has been ultimately delayed in order to bring it in line with a planned UK-wide scheme.
The Scottish Government blamed Westminster’s refusal to allow glass in the scheme for the delay announced in 2023, accusing the Conservatives of sinking Scotland’s DRS and undermining devolution.
However, the Tory government said the delay was entirely the decision of ministers in Edinburgh, who they claimed did not design the scheme properly.
Biffa had already bought around 200 new trucks and recruited staff when the delay was announced.
According to the Sunday Mail, the firm are not only looking to recoup the £55m invested but also projected lost profits.
The firm was initially given a 10-year deal to collect all the recycled containers across Scotland, and expected to make more than £100m in profit.
The UK Government has since pushed back plans for a UK-wide scheme to October 2027.
Legislation paving the way for a bottle-return scheme in England and Northern Ireland came into force on Monday.
The Scottish Government will align with the scheme, albeit by introducing separate legislation and guidance.
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”.
They denied Lorna Slater had made any “negligent misrepresentation” and said ministers did not owe a duty of care to Biffa.
In his ruling on Tuesday, Lord Clark said the case would not be dismissed.
He said: “On the first part of the claim, for the pursuer to succeed at the proof the court will have to be satisfied on the following points: there was an assumption of responsibility; the duty was not inconsistent with the statutory powers and duties of the defenders; the pursuer relied, and reasonably relied, upon the defenders’ conduct; the breaches of duty occurred; and the loss was caused by the alleged breaches.
“On the alternative case on negligent misrepresentation, the pursuer mainly requires to prove that the pursuer’s contention on the proper interpretation of the letter, when viewed in its full context, is correct, and that the pursuer relied, and reasonably relied, upon it, causing the loss of costs.
“Questions also remain in play about the amount of loss on costs and profit which the pursuer can establish.”
A Scottish Government spokesperson said: “The Scottish Government cannot comment on live litigation.”
