Written by Neil Stockdale, Partner and Sophie-May Lewis, Solicitor in our Financial Mis-Selling department.
The Supreme Court ruling in Expert Tooling and Automation Ltd v Engie Power marks a meaningful clarification in how undisclosed commission arrangements in the business energy market should be assessed. While the appeal was resolved by agreement, the outcome has sharpened the legal and commercial framework through which broker-arranged contracts, particularly historic contracts, are now being reviewed.
For many businesses, this matters because it reframes how historic energy procurement decisions are evaluated. Commission arrangements that were historically embedded within tariffs, often without clear explanation, are now less likely to be assessed purely by reference to contractual wording. Instead, the focus has shifted towards what businesses were actually told, what they reasonably understood about pricing, and whether informed consent was genuinely obtained at the point of contracting.
Businesses have long relied on brokers to navigate complex energy markets without a clear understanding of how commission was built into their tariffs. In practice, that reliance frequently came with limited visibility over broker incentives and to what extent those brokers benefited from those arrangements. As a result, many businesses may have entered long-term energy contracts without a clear understanding of how commission affected unit rates or overall cost exposure.
How Expert Tooling clarifies the legal position
The Supreme Court’s approach to Expert Tooling has not created a new category of claim. Rather, it clarifies how existing legal principles should be applied in practice. Prior to Expert Tooling, many claims turned on technical distinctions between “secret” and “half-secret” commission, with outcomes often dictated by contractual wording rather than by what businesses actually understood about commission and its effect on pricing. This approach is now unsustainable.
Key considerations now include whether the broker was operating in a position of trust, how commission was presented during the sales process, and whether the information provided was sufficient to enable a business to make an informed decision on cost exposure. The decision in Expert Tooling now clarifies that generic references to commission buried within contractual documents are less likely to be determinative where they do not reflect what was explained to the business in practice.
Furthermore, the outcome of Expert Tooling reinforces the relevance of fiduciary duties in broker-led energy procurement and the role of supplier knowledge. Where brokers presented themselves as advisers acting in the business’s best interests, the law will now closely examine whether the duties of loyalty and transparency arose, and whether the supplier knew, or ought to have known, that commission was being generated through those relationships.
We have received responses from a number of suppliers and brokers, suggesting that that commission claims will now face significant hurdles and that many should still fail because broker relationships were “purely commercial” or because businesses ought to have understood how commission arrangements worked. Claimants should treat those misguided assertions with caution. The Supreme Court has shifted the focus away from technical labels and standard terms, and back to the reality of the sales process. While each case will turn on its own merits, the decision does not introduce new barriers for claimants or undermine the viability of properly evidenced claims.
Where commission has been embedded within tariffs and not clearly explained at the point of contracting, the key question is whether the business was ever in a position to make a properly informed decision. Arguments based on partial disclosure or the alleged absence of fiduciary duties are now far less persuasive in light of Expert Tooling
Practical Impact for Businesses
For businesses reviewing historic energy contracts, the decision provides a clearer framework for assessing whether those contracts were entered into on an informed basis. Rather than relying solely on contractual wording, businesses can now evaluate how commission was disclosed, how pricing was explained, and whether its decision to enter into the contract was on a properly informed basis.
For businesses that entered broker-arranged contracts quickly, or with limited visibility over commission-influenced tariffs, this clarification reduces the risk that potential claims are defeated on technical grounds alone. The assessment will increasingly turn on what happened at the point of contracting, what information was provided, and what a reasonable business would have understood in those circumstances.
The key takeaway is not that broker-arranged contracts are inherently problematic, but that expectations around transparency have shifted. By reviewing what information was provided at the time contracts were entered into, businesses can better understand their position and assess whether pricing decisions were made on a fully informed basis.
Our approach
We are a UK law firm with extensive experience in complex financial and commercial disputes. We advise businesses of all sizes on energy mis-selling claims, supporting clients from an initial assessment of their position through to litigation where appropriate.
Our approach is careful and evidence-led, with a strong focus on commerciality and proportionality at every stage. We are transparent about prospects of success and risk, ensuring that clients are able to make informed decisions about how best to proceed.
In appropriate cases, we are able to act on a no win no fee basis, subject to an initial assessment of the merits of the claim and the suitability of funding arrangements.
