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

The appeals

FCCB and the Council have both appealed.

FCCB’s grounds of appeal are to the following effect:

The Judge misconstrued “costs directly incurred” as those words are used in the definition of “Third Party Income”;

The Judge was wrong to conclude that the unitary charge received from Luton BC was “income from third parties associated with the project as derived from [Third Party Waste]” and so to be included in the calculation of “actual Third Party Income received by the Contractor for the treatment of Third Party Waste at the Facilities”; and

The Judge was wrong to conclude that FCCB bore the burden of establishing certain matters.

For its part, the Council challenges the Judge’s conclusion as regards the deductibility of haulage costs. It also contends, by way of respondent’s notice, that the costs which are the subject of FCCB’s appeal are not deductible not only because they were not “directly incurred” (as the Judge held) but because they fall within one or more of provisos (a), (b) and (c) to the definition of “Third Party Income”.

The issues which arise from the appeals can be conveniently considered under the following headings:

Deductible expenses;

The Luton unitary charge;

Haulage costs.