In a ruling handed down today (16 January 2026), the court rejected the waste management company’s arguments that Scottish Ministers owed it a duty of care and had made negligent misrepresentations about the deliverability of the scheme.
The decision brings to an end a commercial action in which Biffa claimed it had suffered significant losses after investing heavily in preparation for the DRS, which went to hearing on 21 October 2025.
A Biffa spokesperson commented on the decision: “We note today’s decision and are reviewing our position with our legal advisors.”
Biffa v Scottish Ministers
Biffa was appointed in July 2022 as the sole logistics provider for Scotland’s DRS, under a contract with Circularity Scotland, the body designated by Scottish Ministers as scheme administrator.
The role would have seen Biffa responsible for the collection, transport, counting and recycling of returned drinks containers across the country.
In advance of the scheme’s planned launch, Biffa said it invested around £51.4 million in infrastructure, including equipment, sites, recruitment and commercial contracts.
It also anticipated profits of around £114.8 million over a ten-year period.
However, following a series of delays to the DRS, Circularity Scotland entered administration in June 2023, bringing Biffa’s contract to an end.
Biffa subsequently raised proceedings against the Scottish Ministers, arguing that government actions and assurances had led it to incur losses that it would not otherwise have accepted.
Arguments before the court
Central to Biffa’s case was a letter sent on 17 May 2022 by then circular economy minister Lorna Slater.
In the correspondence, Slater emphasised the Scottish Government’s “unwavering” and “absolute rock-solid commitment” to delivering the DRS by August 2023, and set out Circularity Scotland’s status as the sole approved scheme administrator.
Biffa argued that the letter amounted to a negligent misrepresentation, as it failed to highlight potential legal obstacles to the scheme, in particular the need for an exclusion under the UK Internal Market Act (IMA).
The company claimed that Scottish Ministers had unique knowledge of these risks and had assumed responsibility to warn Biffa, given the scale of its financial commitment.
Biffa also contended that the Scottish Government owed it a duty of care, having effectively encouraged reliance on the scheme proceeding as planned.
The Scottish Ministers rejected these arguments, maintaining that the letter was a “comfort letter” reflecting political commitment rather than a guarantee that all legal and operational hurdles had been resolved.
They argued that Biffa was a sophisticated commercial operator that took a calculated business risk in entering the contract.
Court grants ‘decree of absolvitor’
In dismissing the claim, the court found that the ministerial letter accurately conveyed the government’s policy commitment to DRS but did not amount to an assumption of responsibility for Biffa’s commercial losses.
Lord Sandison noted that the Internal Market Act was a “public general statute” and that its potential interaction with the DRS had been discussed publicly and among stakeholders during 2022.
He concluded that any competent review of the regulatory landscape by Biffa’s advisers should have identified the relevant risks.
The court also rejected Biffa’s reliance on the concept of “legitimate expectation”, finding that this public law doctrine had no bearing on a private law claim for damages.
In his final ruling, Lord Sandison stated: “I shall repel the pleas-in-law for the pursuer, sustain the third plea-in-law for the defenders, and grant decree of absolvitor accordingly.”
DRS in Scotland
Scotland’s DRS was originally scheduled to launch in July 2022 and was designed to introduce a 20p refundable deposit on single-use drinks containers made from PET plastic, metal and glass.
The go-live date was later revised to August 2023, before being delayed again.
In June 2023, Slater told the Scottish Parliament that conditions imposed by the UK government, including the exclusion of glass from the scheme, left Scotland with “no option” but to push implementation back to at least October 2025.
A further delay was announced in April 2024, with the latest indicative start date now set for 1 October 2027, aligned with planned schemes in England and Northern Ireland.
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