Key takeaways
Supreme Court removes commission disclosure distinctions
Abolished categories make all undisclosed commissions challengeable.
Claimants no longer need to prove broker dishonesty
Recovery now focuses on nondisclosure rather than intent.
Ruling opens door to more business claims
Energy users can revisit historic contracts for hidden fees.
Background
Expert Tooling and Automation Ltd ('Expert Tooling') manufactures tools, equipment and machinery and consumes substantial volumes of energy. To procure its electricity contracts, it engaged Utilitywise plc ('Utilitywise'), an energy broker. Utilitywise received commission from Engie Power Limited ('Engie'). While the claimant knew a commission would be paid, it had no knowledge of the amount or the terms on which it was calculated. Utilitywise later went into administration in 2019 and was never sued. Expert Tooling instead brought proceedings directly against Engie, asserting that:
Utilitywise owed the claimant contractual and fiduciary duties, including not to place itself in a position of conflict.
Receiving commission from Engie without informed consent was a breach of duty.
Engie was liable to repay the commissions as money had and received or equitable compensation for inducing that breach.
The claim went all the way to the Supreme Court with different messages coming through at each stage.
High Court
The High Court originally dismissed the claim, holding that:
Utilitywise was a fiduciary but the scope of the duty did not extend to full disclosure of commission amount or structure.
Expert Tooling had, in any event, given informed consent.
There was no breach of fiduciary duty.
Part of the claim was time barred, with no deliberate concealment.
Court of Appeal
Expert Tooling appealed on eight grounds, challenging the judge’s findings on fiduciary scope, informed consent, dishonesty, custom and usage, limitations, and concealment.
The Court of Appeal held:
The judge was wrong to conclude that Utilitywise had not breached its fiduciary duty.
However, liability against Engie for money had and received or for procuring/assisting a fiduciary breach required proof of dishonesty.
As no allegation of dishonesty had been made against Engie, the claim still failed.
Supreme Court
The claimant appealed to the Supreme Court on two principal grounds:
Ground 1: Was the Court of Appeal wrong to distinguish between a 'half secret' and a 'fully secret' commission for the purpose of determining whether the commission should be treated as a bribe that attracts restitutionary liability for the amount of the bribe?
Ground 2: Alternatively, if 'half secret' commissions are to be treated distinctly from 'fully secret' commissions, was the Court of Appeal wrong to apply a test of dishonesty at all and, in any event, a test which is inconsistent with the decision in Hurstanger and which required more than that the commission-payer knew of the existence of a fiduciary relationship?
Given the Supreme Court’s judgment in the recent case of Hopcraft -v- Close Brothers Ltd [2025] UKSC 33, (car finance commission case) it has been agreed between the parties that the appeal be allowed. As such, the Supreme Court has made an order allowing the appeal and giving judgment for the appeal, awarding the claimant the full amount of the secret commission that had been paid to Utilitywise. The Court removed the distinction between half secret and fully secret commissions, meaning any undisclosed commission can now be challenged. Expert Tooling did not need to prove Engie’s dishonesty to recover the commission.
The decision confirms:
The distinction between half secret and fully secret commissions is abolished.
Claimants do not need to prove dishonesty to recover undisclosed commissions.
Any commission arrangement that is not fully disclosed to the principal can now ground a restitutionary claim.
Conclusion
This decision represents a major shift in the law on undisclosed commissions:
Brokers and suppliers must fully disclose all commission structures.
There is now greater scrutiny on energy broker arrangements, many of which historically utilised opaque pricing and hidden fees.
Claimants are now better positioned to pursue restitutionary claims, though they still face evidential hurdles around establishing agency and fiduciary duties.
With these developments, many businesses - particularly heavy energy users - may now have actionable claims for undisclosed commissions embedded in their historic contracts.
We have experience of dealing with such claims, specifically within the energy sector. Please contact Paul Walsh or Jon Scally.
