Expert Tooling v ENGIE: what the Supreme Court outcome means for business energy claims

For years, undisclosed commission claims in the business energy market turned on a technical distinction. Was the commission "secret", meaning the customer was told nothing at all? Or was it "half-secret", meaning some generic reference appeared somewhere in the paperwork? A line buried in a supplier's terms could be enough to sink an otherwise strong claim.

Expert Tooling and Automation Ltd v ENGIE Power Ltd has made that approach much harder to sustain.

What actually changed

The appeal was resolved by agreement rather than by a full contested judgment, so there is no neat new rule to quote. What has changed is the framework practitioners now work within. The question is no longer simply whether the word "commission" appeared in a document. It is whether the business was ever in a position to give informed consent to what it was paying.

Three things now carry more weight than they did:

• How the broker presented itself. A broker that held itself out as acting in the customer's interests, searching the market on their behalf, is in a very different position from one that made clear it was a salesperson earning from the supplier.
• What was said during the sales process. A generic clause in a contract that nobody read out, explained, or drew attention to is less likely to be treated as disclosure of a commission the customer had no way of quantifying.
• What the supplier knew. Suppliers pay the commission. Where a supplier knew, or ought to have known, that a broker was earning an undisclosed uplift while presenting itself as the customer's adviser, that knowledge matters.

What has not changed

The decision did not create a new category of claim, and it did not make every broker-arranged contract actionable. Brokers are entitled to be paid. A business that was told, in terms it could understand, roughly what the broker would earn and how, has a much weaker case than one that was told nothing.

Some suppliers and brokers have argued since the decision that claims now face higher hurdles, on the basis that these were purely commercial relationships between businesses that ought to have known how the market works. That argument has not gone away, and in some cases it will succeed. But it is now argued on the facts of the sales process rather than settled by reference to a standard term.

What this means in practice

If your business signed an energy contract through a broker and you cannot say what the broker earned from it, the useful question is not "was there a clause?" but "was I ever told enough to make an informed decision about what I was paying?"

Answering that means going back to the documents: the contract, the bills, the emails and the letter of authority. It is unglamorous work, and it is where a claim is either made or lost.