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On 9 January 2026, the Supreme Court took a decisive step in relation to commission payments in the energy supply market by granting permission to appeal the Court of Appeal decision in the case of Expert Tooling and Automation Ltd v Engie Power Ltd.
This case, which concerns the liability associated with 'half-secret' commissions, has captured the attention of stakeholders across the energy supply market. The implications for how commission arrangements and agency relationships are managed in the energy supply market, particularly for those involved in third-party intermediary agreements, will be significant.
In this article, we give a brief recap of the case so far, the Supreme Court's reasonings for granting the appeal, and what this means for third party intermediaries.
Background
Utilitywise Plc (UWise) acted as a third-party broker, arranging electricity supply contracts between Expert Tooling Ltd (Expert Tooling) and Engie Power Ltd (Engie). While Expert Tooling was aware UWise would receive a commission from Engie, they were not informed of critical details such as the amount, how it was incorporated into the contract price, or how it was structured up front.
Following UWise's liquidation in 2019, Expert Tooling brought proceedings against Engie, alleging Engie's liability as an accessory to UWise's alleged breach of fiduciary duty.
The High Court initially found that UWise's fiduciary duties did not extend to disclosing the amount or calculation method for commissions, holding that Expert Tooling had given informed consent and could understand commission arrangements. Subsequently, Expert Tooling appealed to the Court of Appeal.
Court of Appeal - key issues and findings
The Court of Appeal found the following:
- Scope of fiduciary duties and disclosure: UWise was not obliged to disclose commission amounts or funding details, only to fully disclose any conflicts of interest. The Court found that there was a breach of fiduciary duty by UWise.
- Informed consent: The Court of Appeal found Expert Tooling had not provided informed consent, as they were not made aware of all material circumstances needed for an informed decision about the commission.
- Accessory liability and dishonesty: Dishonesty is required to establish accessory liability for breach of fiduciary duty - a high threshold not met here, with no evidence of dishonesty by Engie.
- Limitation: The Court ruled the claim for equitable compensation was not time-barred, as the cause of action accrued on the date Engie paid the commission to UWise.
Subsequently, Expert Tooling went on to appeal to the Supreme Court on two grounds:
- Should the law distinguish between "half-secret" and "fully secret" commissions in determining whether a commission constitutes a bribe requiring restitution?
- Was it correct to apply a dishonesty test if "half-secret" commissions are to be considered separately from "fully secret" commissions?
Why has the Supreme Court granted permission to appeal?
Permission was granted in light of the Supreme Court's recent decision in Hopcraft and another v Close Brothers Limited; Johnson v FirstRand Bank Limited; Wrench v FirstRand Bank Limited (Hopcraft) which clarified the legal framework for commission arrangements in the context of motor financing commission.
Key takeaways from Hopcraft
No fiduciary duty in the typical dealer-finance relationship
Because a car dealer's main focus is on selling the car, the Supreme Court held that a dealer's role will not usually create a fiduciary duty. Without that duty, there can be no claim for bribery or dishonest assistance.
Secret commissions
A commission paid by a counterparty to an intermediary who owes fiduciary duties to the customer will be treated as a bribe unless the customer gave fully informed consent to the intermediary receiving and retaining that commission. Boilerplate statements that a commission "may be paid" are insufficient.
Half-secret commissions
The Supreme Court has removed this "middle" category of half-secret commissions. Partial or generic disclosures that fall short of enabling fully informed consent do not prevent a commission from being treated as secret for bribery purposes if a fiduciary duty exists.
What does this mean for third party intermediaries in the energy sector?
Following Hopcraft, the position for the energy sector is again unclear, as the Court of Appeal's decision in Expert Tooling was based on the law as it stood before Hopcraft. It is therefore helpful that the appeal has been allowed, so that the Supreme Court can clarify the circumstances in which a fiduciary duty might arise in the case of an energy broker.
If - in contrast to typical car dealer arrangements - a fiduciary duty can be established, then nothing less than the customer's fully informed consent would prevent a breach of that duty.
Read the original article on GowlingWLG.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
