Costs of Deposit Return Scheme court case with Biffa: EIR release

Information requested

You asked for:

‘I am writing to request an update to the information previously disclosed under FOI reference 202400440418, concerning the legal costs incurred by the Scottish Government in the case of Biffa Waste Services Ltd v Scottish Minister.

Specifically, I request the following information:

1. The total legal fees incurred up to and including the date of the hearing on Tuesday, 21 October 2025.

2. An estimate of any legal fees that have been incurred but not yet billed or paid as of that date.’

Response

As the information you have requested is ‘environmental information’ for the Purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes.
This is essentially a technical point and has no material effect on the outcome of your request.

Question 1

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

The total legal costs incurred by the Scottish Government in relation to the BIFFA Waste Services legal case,prior to 13 November 2024, can be found online here: Full costs of Deposit Return Scheme court case with Biffa: EIR release 

From the period 13 November 2024 to 21 October 2025 the total costs incurred by the Scottish Government in relation to the legal case with BIFFA Waste Services is £160,434.00.

Question 2

While our aim is to provide information whenever possible, in this instance the Scottish Government does not hold the specific information you have requested. This is because the Scottish Government is unable to provide an estimate of costs for services that have not yet been billed.

Therefore, with respect to your request this is a formal notice under Regulation 10(4)(a) of the EIRs confirming that the Scottish Government does not hold this information.

This exception is subject to the ‘public interest test’. It is important to note that although we do not hold the information and have applied Regulation 10(4)(a) – information not held, it is a requirement that we have to apply the public interest test.

In addition, it is in the public’s interest that the Scottish Government does not estimate costs that have not been finalised, or billed, as this may result in inaccurate figures being provided and ensures that only factual and accurate information is released in the public domain.

Wider guidance on the Environmental Information regime can be found in the Key Concepts section under ‘Information Not Held’ and ‘The Public Interest Test’ in the attached  Scottish Information Commissioner  Briefings and guidance  

Further guidance on the public interest test can also be found on page 8 of the Scottish Information Commissioner guidance.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.