Expert Tooling and Automation Limited v Engie Power Limited

This dispute came out of a common buying model. A business wanted help sourcing electricity contracts, so it used a broker to negotiate with suppliers and, for some contracts, to sign on its behalf.

The customer was Expert Tooling and Automation Limited. The broker was Utilitywise Plc. The supplier was Engie Power Limited.

The important commercial feature was how the broker was paid. Tooling did not pay Utilitywise directly. Utilitywise received commission from Engie, and the Court of Appeal said that commission was added to the unit price Tooling paid under its electricity contracts.

Tooling knew Utilitywise would receive commission from Engie. But it did not know other material matters, including how much. That made this a partially disclosed, or half-secret, commission case rather than a case of total secrecy.

Tooling said that because Utilitywise was acting as its agent, Utilitywise could not accept that commission without Tooling’s informed consent. It also said Engie should be liable because Engie paid the commission knowing Utilitywise was acting for Tooling.

The trial judge dismissed the claim. Tooling appealed. The Court of Appeal then had to decide both what disclosure was needed from the broker and what legal test applied to the supplier.

A central issue was Utilitywise’s role. Not every intermediary owes the same duties. Some are introducers. Some act for the supplier. Some act for the customer. Some try to do more than one thing at once.

Here, Tooling had given Utilitywise letters of authority to act for it in matters relating to gas and electricity supplies. The trial judge found that Utilitywise was Tooling’s agent in a paradigm sense. That finding was not appealed.

Because Utilitywise was Tooling’s agent, the court approached the case on the basis that Utilitywise owed fiduciary duties to Tooling. In practical terms, that means duties of loyalty. A fiduciary agent must not put itself in a position where its own interests conflict with the customer’s interests unless the customer gives proper consent.

That is why supplier-paid commission can be legally sensitive. If a broker can earn money from the supplier, especially where the amount may vary, the broker may have an incentive that does not perfectly match the customer’s interests.

The surrounding documents supported the agency picture. Utilitywise’s website described it as a trusted adviser that would negotiate with the energy supplier on the customer’s behalf. The brokerage agreement between Utilitywise and Engie also said Utilitywise had authority to act for customers and included commitments about acting fairly, honestly and transparently, including transparency about charges and commissions.

For a business owner, the first lesson is to map the relationship before looking at disclosure wording. If the intermediary is negotiating for you, presenting itself as acting in your best interests, or signing under a letter of authority, the law may expect more than a passing reference to commission.

The appeal raised several grounds, but the commercial questions were clear.

First, had the trial judge been wrong to treat the broker’s fiduciary duty as limited so that Utilitywise did not have to tell Tooling the amount of commission or that it was added to the price?

Second, if the duty was not limited in that way, had Tooling nevertheless given informed consent to the commission arrangement on the facts?

Third, if Utilitywise was in breach, what did Tooling have to prove against Engie? Was Engie automatically liable because it paid the commission knowing Utilitywise was Tooling’s agent, or did Tooling have to prove the separate elements of accessory liability?

The court also dealt with arguments about trade usage, sophistication, vulnerability and limitation. But for most businesses, the practical core of the case is the line between disclosure by the broker and liability of the supplier.

The Court of Appeal disagreed with the trial judge’s approach to the scope of Utilitywise’s fiduciary duty. It said there were no express or implied terms in the contract between Utilitywise and Tooling that could mould or modify the scope of those fiduciary duties in the way the judge had found.

Instead, the factors relied on by the judge could at best go to a different question: whether the broker had made full disclosure and obtained Tooling’s fully informed consent on an ad hoc basis.

The court then set out the standard for informed consent in this setting. The burden lies on the fiduciary. It is not enough to say the customer could have discovered the true position by asking more questions. It is not enough to give statements that merely put the customer on inquiry.

The fiduciary must identify the material circumstances, together with the nature and extent of its own interest and the conflict involved, so as to bring home to the principal what it is being asked to consent to.

Applying that approach, the Court of Appeal said the factors relied on by the judge went nowhere near what was required for full disclosure and fully informed consent. There had been no disclosure of the terms of the arrangements between Utilitywise and Engie, no proper identification of the conflict, and no explanation of the nature and extent of that conflict.

The court also rejected the idea that a supposed known industry practice or trade usage solved the problem on the evidence before it. It said there was no proper basis for that conclusion.

But the court did not treat Engie as automatically liable. It held that the claim against Engie was one of accessory liability for procuring a breach of fiduciary duty. For that kind of liability, dishonesty is required.

The court explained that dishonesty in this context means knowing about, or deliberately turning a blind eye to, the breach of the broker’s fiduciary duty to its principal. Where blind-eye dishonesty is alleged, it is not enough to show the defendant made no inquiries. The claimant must prove a firmly grounded suspicion and a deliberate decision not to inquire to avoid confirmation.

On the facts of this case, the Court of Appeal said dishonesty could not appropriately or reliably be determined on appeal. The issue had not been raised on the pleadings in that way, Tooling had earlier disavowed an intention to pursue it, and the evidence had not been developed to test the relevant states of knowledge and belief within Engie.

The judgment is useful because it shows the kinds of documents and conduct a court will examine in a broker commission dispute.

The letters of authority mattered because they showed Utilitywise was authorised to act for Tooling in relation to energy supplies. That supported the finding of agency and fiduciary duty.

Utilitywise’s own sales language mattered because it presented Utilitywise as a trusted adviser that would negotiate on the customer’s behalf and help secure the right contract terms.

The brokerage agreement between Utilitywise and Engie mattered because it dealt with commission mechanics and also required Utilitywise to be transparent with potential customers about charges and commissions.

The actual disclosure wording mattered too. Tooling knew commission existed. There were phone calls in which Utilitywise said it got paid commission from the supplier. Engie’s quotation wording said prices may include commission due to a third party consultant or broker. But the court said that level of disclosure was still far short of what was needed for fully informed consent.

The court also looked carefully at whether Tooling had actually been told that commission was added to the price under the contracts in issue. It was not prepared to treat vague or garbled wording, assumptions, or opportunities to ask questions as enough.

That is a practical warning. If your business relies on disclosure, the record should be clear, direct and contract-specific. Courts are unlikely to be impressed by hints, small print or wording that only suggests the customer could have asked more.

This decision is a warning against casual commission disclosure where a broker is acting for the customer. A line saying the broker gets commission, or that the price may include commission, may not be enough if the customer is being asked to consent to a real conflict of interest.

If your business buys through brokers, treat commission disclosure as part of procurement control. Before approving a brokered contract, ask who the broker acts for, who pays it, whether the payment is built into the price, whether the amount varies by supplier, and whether any other incentives could affect the recommendation.

If the broker signs under a letter of authority, make sure the approver understands that the broker may be your agent rather than a neutral marketplace. That changes the legal risk.

If your business is the supplier paying commission, do not assume a broker-side promise of transparency is enough. Align the brokerage agreement, quotation wording, account team practice and any scripts used on calls. The issue is whether the customer actually receives enough information to give informed consent where that is needed.

This case also shows why businesses should separate two questions. One is whether the broker breached duties owed to the customer. The other is whether the supplier is separately liable as an accessory. Those questions are related, but they are not the same.

Finally, keep evidence. Years later, disputes often turn on what was said on calls, what documents were sent, and whether the customer really understood the arrangement. Written disclosures, call notes, recordings and signed approvals can make a major difference.

The Court of Appeal gave judgment on 21 March 2025. The case is a current appellate authority on partially disclosed commission, informed consent and accessory liability in this context.

The judgment also refers to the court’s earlier decision in Johnson v FirstRand Bank Limited when discussing the legal framework. In this case, however, the Court of Appeal stressed that accessory liability against the supplier still requires dishonesty and did not finally determine dishonesty against Engie on the evidence before it.

For ordinary businesses, the durable lesson is practical rather than procedural. If a broker acts for the customer and is paid by the supplier, the role, the commission structure and the customer’s consent should be documented clearly and consistently.