Update on secret commission claims against energy brokers

In early January 2026 the Supreme Court allowed, by consent, the claimant’s appeal in Expert Tooling and Automation Ltd v Engie Power Ltd (underlying Court of Appeal judgment at [2025] EWCA Civ 292).

The claim arose from an action brought by Expert Tooling and Automation Ltd (“Expert Tooling”) over commissions paid to an energy broker, Utilitywise Plc (“Utilitywise”). Expert Tooling is a tool and related equipment manufacturer with significant energy demands. It used the services of Utilitywise as an energy broker to negotiate electricity supply contracts with Engie. Utilitywise was not paid by Expert Tooling but received a commission from Engie Power Ltd (“Engie”). Although Expert Tooling knew Utilitywise was receiving a commission, it did not know the amounts.

With Utilitywise dissolving, Expert Tooling brought its claim against Engie alleging that Engie should be liable to account to Expert Tooling for the commissions paid to Utilitywise on the basis that Engie induced Utilitywise to breach its fiduciary duty to its client, Expert Tooling. As many of our readers know, in the related car finance litigation case which went to the Supreme Court (Hopcraft v Close Brothers Ltd [2025] UKSC 33 (“Hopcraft”)), the issue of whether, in such circumstances a fiduciary relationship arises, and if so whether the receiver is accountable for (in some cases, termed secret) commission received, is and remains a hot topic.

At first instance the High Court held that Utilitywise’s duty to Expert Tooling did not extend to disclosing the amount of the commission or its basis for calculation. Expert Tooling was considered to be a sophisticated customer and had given informed consent that some commissions were to be paid.

Expert Tooling appealed, and the Court of Appeal disagreed with the High Court: there was a breach of fiduciary duty as Expert Tooling was not fully informed of all material facts. Further, Expert Tooling’s level of sophistication was not relevant when considering the fiduciary duty held by Utilitywise.  However, Utilitywise was not held liable to Expert Tooling as there was no allegation of dishonesty on their part, a necessary element for procuring or assisting in a breach of fiduciary duty.

Expert Tooling appealed to the Supreme Court (who last week allowed that appeal – by consent) on two points:

1. Should a “half secret” commission be distinct from a “fully secret” commission.
2. If so, should a test of dishonesty be applied.

With reference to the Supreme Court’s decision in Hopcraft (concerning undisclosed commissions in car finance agreements), the parties agreed the appeal should be allowed with the Supreme Court giving judgment for the Expert Tooling.

Implications

This is undoubtedly a significant development in this area: whether or not it proves to be a watershed moment remains to be seen. 

In terms of the law, in one sense this does not significantly change the position in relation to secret commissions. As we have advised previously, it remains in any such case that a tribunal will need to establish what the level of relationship between the parties was and what level of duty this establishes. 

We do now have some more guidance on how this will be assessed, and beyond various factors which we were already alive to (and have been advising clients on in this area for some time) it will be important to bear in mind a client’s perceived sophistication and/or the awareness of market custom and practice at the time. This will, as with all factors impacting the determination of arising duty, be ultimately fact sensitive. 

Outside the pure legal implications, however, we have been aware of claims houses gearing up for some time to bring these claims and it will be worth watching trends to see whether this latest development now emboldens them to bring claims with more gusto. Insurers will want to be alive to this, as whilst many claims may be (relatively) small in value and tend towards settlement (e.g. in light of comparative defence costs), wider perception, precedent and positioning implications will be important, particularly if this were to mark the start of a wider trend.