European Court of Justice

Sheffield company Uniplex (UK) Limited has won a legal case at the European Court of Justice in Luxembourg, (ECJ) a result which will see the position of small businesses strengthened.

Uniplex UK manufactures and repairs surgical instruments and distributes other medical consumables to the National Health Service. During 2007 it tendered to the NHS Supply Chain – an organisation run by German owned DHL – for the right to be included in a list of approved suppliers of surgical haemostats to the NHS. It lost out in the tender process because – it believed – that process had not been conducted fairly. Uniplex took the brave step of challenging the tender process, starting proceedings in the High Court in Leeds, which in turn referred the case to Luxembourg for guidance on the applicable European law.

Arguments put by Uniplex' solicitors Irwin Mitchell to NHS Supply Chain were rejected on the basis that the challenge was too late under the rules for public contract tenders. This was wrong, as the ECJ ruling has now confirmed. Not only had the NHS' agents taken the wrong starting-time, but the court found that the relevant UK regulations did not comply with European Union requirements.

It is rare for Yorkshire cases to go to Luxembourg but Adriaan Posthuma, the Managing Director of Uniplex, was determined not to be beaten down by the full might of the NHS. Facing Uniplex and its lawyers, Irwin Mitchell and Barrister Maurice Sheridan of Matrix Chambers in London (where Cherie Booth QC practises), were not only the lawyers representing NHS Business Services Authority but also those legal representatives of the UK itself and the Republic of Ireland. However, on the day Uniplex found support at the hearing by lawyers representing the European Commission and perversely from DHL's perspective, Germany.

As a result of this successful challenge by a determined Managing Director life has been made easier for suppliers to the public sector to bring a challenge where they believe the procurement process has been unfair. This will be good for those companies which supply public bodies, not only in Yorkshire, but across the UK and indeed across the whole of the European Union.

This case redresses the balance of power between suppliers large and small and the Goliath like public sector organisations, the NHS being one of the largest of all.

For further information please contact Andrew Lockley on 0370 1500 100.