Ruling in Expert Tooling v Engie refocuses scrutiny on disclosure and informed consent
The Supreme Court’s ruling in Expert Tooling and Automation Ltd v Engie Power has provided important clarification on how undisclosed commission arrangements in business energy contracts should be assessed, particularly in cases involving broker-arranged agreements.
Although the appeal was resolved by agreement, the outcome has sharpened the legal framework applied to historic energy contracts where commission was embedded within tariffs. The decision signals a move away from technical reliance on contractual wording alone, and towards a fact-sensitive examination of what businesses were told at the point of contracting, what they reasonably understood about pricing, and whether informed consent was obtained.
For many businesses, the ruling has implications for how past procurement decisions are reviewed. Historically, commission was often incorporated into energy tariffs without clear explanation, leaving customers with limited visibility over broker incentives or the impact on unit rates and overall costs. The Supreme Court’s approach now places greater emphasis on transparency during the sales process.
The decision does not create a new category of claim. Instead, it clarifies the application of existing legal principles. Prior to Expert Tooling, disputes frequently turned on whether commission was classified as “secret” or “half-secret”, with outcomes often determined by standard contractual terms rather than the substance of communications between broker and customer.
That approach is no longer sustainable. The assessment now focuses on whether the broker operated in a position of trust, how commission was presented during negotiations, and whether the information provided enabled the business to make a properly informed decision about pricing and cost exposure.
Generic references to commission contained within contractual documentation are less likely to be determinative where they do not reflect what was explained in practice. The ruling also reinforces the relevance of fiduciary duties in broker-led energy procurement, as well as the role of supplier knowledge. Where brokers presented themselves as advisers acting in the customer’s best interests, courts are likely to scrutinise whether duties of loyalty and transparency arose, and whether suppliers knew, or ought to have known, how commission was being generated.
Some suppliers and brokers have suggested that commission-based claims will now face greater hurdles, arguing that broker relationships were purely commercial or that customers should have understood how commission operated. However, the Supreme Court’s approach shifts the focus away from formal labels and standard terms, and back to the reality of the sales process.
Each case will continue to turn on its own facts, but the decision does not introduce new barriers to claims where there is evidence that commission was embedded in pricing without clear explanation. Where businesses were not placed in a position to make an informed decision at the time of contracting, arguments based on partial disclosure or the absence of fiduciary duties may carry less weight.
For businesses reviewing historic energy contracts, the ruling provides a clearer framework for assessing whether agreements were entered into on an informed basis. Rather than relying solely on contractual documentation, attention can now be given to how commission and pricing were explained during negotiations and what a reasonable business would have understood in the circumstances.
The decision does not suggest that broker-arranged contracts are inherently problematic. However, it reflects a shift in expectations around transparency and disclosure, particularly in relation to pricing structures influenced by commission.