Case Nos: CA-2024-002136 - [2025] EWCA Civ 921

FCCB’s case

Ms Parkin pointed out that the original contract with Luton BC long pre-dated the Project Agreement and that the unitary charge reflected services which had nothing to do with Greatmoor. On the basis of the Judge’s decision, Ms Parkin said, income would be deemed Third Party Income which had nothing to do with the project for which the Project Agreement provided and was not derived from Third Party Waste (because, for example, it included income referable to the costs of constructing new facilities or those of providing recycling services). Luton BC paid FCCR the same, Ms Parkin commented, whether the waste went to Greatmoor or elsewhere. The Judge decided as he did, Ms Parkin submitted, on the basis that the result was not “manifestly unfair” rather than by reference to the wording of the Project Agreement. Further, the Judge’s reliance on O’Farrell J’s judgment was misplaced, not least because O’Farrell J had not been asked to consider a multi-service contract such as that with Luton BC. There being, as the Judge recognised in paragraph 309 of the Judgment, “insurmountable difficulties” in determining what FCCR had actually spent on its operation generating income from Third Party Waste processed at Greatmoor, the Council cannot be entitled to any of the unitary charge, Ms Parkin argued.