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

The Judgment

The Judge agreed with the Council. He concluded in paragraph 298 of the Judgment that the Council was “correct to argue that the unitary charge does include income from third parties associated with the project as derived from [Third Party Waste]”. He considered that the reasoning of O’Farrell J in her judgment of 26 October 2021, in particular in paragraphs 84 and 85 of that judgment, was “plainly correct” and “applies just as much to the unitary charge in this case as to the income received from [Hertfordshire CC] and [LondonWaste] in the case before O’Farrell J”: paragraph 299. He rejected an argument advanced by FCCB that no relevant Third Party Income could be identified because the unitary charge was “indivisible”, saying that he had “no doubt that FCC cannot properly deploy the indivisible sum argument as a full defence to the claim”: see paragraphs 297 and 308. He considered that “the simple solution adopted by [the Council] provides a sufficient answer” to the objection, observing that it “may be rough and ready, but it is not manifestly unfair on FCC”: paragraph 308. He was accordingly “satisfied that [the Council] has made out its case as regards the Luton unitary charge and that the income should be calculated on the proportionate tonnage basis adopted by [the Council]”: paragraph 316. He had noted in paragraph 310 that “the issue of deductible costs is not for this trial or for this judgment”.