Lorna Slater 'misrepresented' chances of Deposit Return Scheme success, court told

Green minister Lorna Slater 'negligently misrepresented' the chances of the Deposit Return Scheme succeeding in order to keep a key contractor on board, a court was told.

A judge heard Ms Slater needed waste company Biffa to commit to the doomed scheme in order to give it 'a purpose'.

In order to ensure the company stayed on board, she gave a written assurance about the scheme's chances of being implemented, it was claimed.

The Court of Session heard yesterday that Ms Slater did not mention that the scheme would need the final go-ahead from Westminster under the Internal Market Act.

Biffa believes the Holyrood government is responsible for it incurring massive losses and it now suing ministers for £166million it sank into the collapsed scheme as well as other associated set-up costs.

The firm believes the Scottish Government misrepresented the scheme when it assured Biffa it would go ahead.

The company is said to have relied on personal assurances from Green Party co-leader Lorna Slater before deciding to invest in vehicles and equipment.

The then Circular Economy Minister abandoned the botched project in June 2023 after the Conservative government in London refused to give the go ahead for it be implemented.

Yesterday Advocate Roddy Dunlop KC, acting for Biffa Waste Services, claimed Ms Slater only gave the assurance because the scheme would be 'dead in the water' without a 'well resourced' contractor on board.

Lawyers for the Scottish Ministers said Biffa had taken a 'commercial risk' in becoming involved in the scheme is not entitled to a payout.

But Biffa claims the Scottish Government 'negligently misrepresented the assurance it gave'.

Mr Dunlop told the court: 'Our position is that we did sign the contract in a situation of the assumption of responsibility.

'The minister was not required to give an assurance but she voluntarily did.

'She did so because she wanted Biffa on board. She must have known Biffa would act upon what she said.

'It is writing a letter that provides the assurances that not reflect the actuality of the situation.

'We know why she decided to write that letter. She wrote that letter as she needed the Deposit Return Scheme to have a purpose.

'She needed a contractor like Biffa - who was swithering about whether to become involved - to become involved.'

Mr Dunlop also claimed that Ms Slater's purpose in writing the letter to Biffa was to ensure the scheme's success.

He added: 'The simple fact of the matter is that the Ministers were very keen to have Biffa on board.

'It was important for them politically and logistically to have a well resourced contractor like Biffa on board.

'Without that the Deposit Return Scheme was dead in the water.'

Earlier this week, the Scottish Government's advocate Gerry Moynihan KC said ministers do not have a 'duty of care' to Biffa Waste Services Ltd.

He said the Scottish Ministers had did everything in its power to bring the scheme into being and that Biffa had taken a 'commercial risk' in its investment in the scheme.

He added: 'There is a conflict between Biffa's interest and the public interest.

'They (the Scottish Ministers) don't owe a duty of care to Biffa because it conflicts with their duty to pursue the public interest.'

Yesterday, Mr Dunlop claimed Mr Moynihan does not have a correct understanding of the law on the matter, adding: 'The defender's argument doesn't survive contact with reality.

'It is saying "I know we have set a trap for you and you fell into the trap but that's just tough".'

Lord Clark said he would issue a decision on whether the case can proceed in the near future.