The head of the non-profit company that was designated to administer Scotland’s deposit return scheme (DRS) has said it was not in “full possession of the facts” around the liability of the initiative.
Circularity Scotland chief executive David Harris told the Court of Session in Edinburgh on Wednesday he felt “the material facts were kept from us”.
He made the comment after being shown a report from a Scottish Parliament committee meeting which took place in January 2022.
Biffa Waste Services is suing the Scottish Government, seeking £166 million of reparations over the decision to delay the DRS in 2023.
The report shown in court highlighted the DRS could be “disapplied” due to Internal Market Act rules.
The document said there were “good reasons to believe that the core aspects of the regime could be disapplied as a consequence of the Act”.
Mr Harris said he had not seen the document before and had not been in “full possession” of the facts.
He said: “On the basis of what is presented to me today, I feel the material facts were kept from us and that would have had a significant bearing on our ability to proceed.”
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 with it was terminated.
At the court on Wednesday, Mr Harris said he had not been told of the UK government’s position on internal market rules that could have impacted the scheme going ahead.
Roddy Dunlop KC, acting for Biffa, asked Mr Harris if he felt betrayed.
He responded “I could say that, yes.”
Circularity Scotland is funded by the drinks industry. Documents from Companies House show its liabilities amounted to almost £86.2 million.
The largest creditor is Biffa, a waste management firm responsible for collecting and recycling bottles and cans for the scheme, with a liability of £65 million.
Mr Harris said he would have made Biffa aware if he had known earlier that the DRS could be “disapplied” due to internal market rules.
