Buckinghamshire Council v FCC Buckinghamshire Ltd [2021] EWHC 2867 (TCC) (26 October 2021)

Buckinghamshire Council v FCC Buckinghamshire Ltd [2021] EWHC 2867 (TCC) (26 October 2021)

Income received by FCCB or any Affiliate, including FCC Waste Services, in respect of the treatment of waste from third parties at the Main Facility, including collection, transportation, and metals or other residue from the IBA, constitutes 'Third Party Income' as defined in the Project Agreement and is subject to sharing. The threshold levels for income sharing are to be indexed by reference to actual inflation indices, not by a fixed 2.5% per annum. The Authority is entitled to disclosure of income and supporting documents from FCCB and relevant affiliates, but not to extensive or disproportionate disclosure beyond what is necessary to establish its entitlement.

Citation
[2021] EWHC 2867 (TCC)
Parties
Claimant/defendant: Buckinghamshire Council; Defendant/claimant: FCC Buckinghamshire Limited
Jurisdiction
England and Wales
Judgment Date
26 October 2021
Procedural Posture
Part 8 Claim / Judgment
Outcome
Declarations granted in favour of the Authority regarding the scope of 'Third Party Income'; FCCB's claim for repayment dismissed; Authority's claim for payment dismissed; Order for disclosure of income and supporting documents granted in part.
Legal Topics
Interpretation of Project Agreements, Income Sharing Mechanisms, Indexation Clauses, Disclosure of Information
Contract Law Commercial Law Public Procurement Interpretation of Project Agreements Income Sharing Mechanisms Indexation Clauses Disclosure of Information

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Parties

Buckinghamshire Council

Claimant/defendant

FCC Buckinghamshire Limited

Defendant/claimant

Procedural Posture

Part 8 Claim / Judgment

Legal Issues

  1. 1 Whether income received by affiliates of FCCB remotely from the Facilities in respect of waste from third parties constitutes 'Third Party Income' for the purpose of Schedule 15 and falls to be shared between the parties
  2. 2 Whether income derived from metals in the residue from the treatment process, the IBA, falls within the definition of a 'Recyclate Output' and/or 'Third Party Income' for the purpose of Schedule 15
  3. 3 Whether the court should order FCCB to provide further information and documentation in respect of income received from third parties for the purpose of determining the Authority's entitlement, if any, to a share in the same

Ratio Decidendi

Income received by FCCB or any Affiliate, including FCC Waste Services, in respect of the treatment of waste from third parties at the Main Facility, including collection, transportation, and metals or other residue from the IBA, constitutes 'Third Party Income' as defined in the Project Agreement and is subject to sharing. The threshold levels for income sharing are to be indexed by reference to actual inflation indices, not by a fixed 2.5% per annum. The Authority is entitled to disclosure of income and supporting documents from FCCB and relevant affiliates, but not to extensive or disproportionate disclosure beyond what is necessary to establish its entitlement.

Court Disposition

Declarations granted in favour of the Authority regarding the scope of 'Third Party Income'; FCCB's claim for repayment dismissed; Authority's claim for payment dismissed; Order for disclosure of income and supporting documents granted in part.

Orders

  • FCCB and relevant affiliates must provide details and supporting documentation of all income associated with the Project received from third parties to date, as specified in paragraphs 6-9 of Schedule 2 to the Authority's Part 8 Claim.
  • No order for disclosure of documents identified in paragraphs 10-12 or haulage details in paragraphs 13-18 of Schedule 2.