Commission claims: Supreme Court Decision in Expert Tooling v ENGIE Power
16th January 2026
As reported on in our earlier briefing, the Claimant in Expert Tooling and Automation Limited v ENGIE Power Limited [1] (Expert Tooling) was unsuccessful in its appeal to the Court of Appeal. The Claimant went on to appeal the Court of Appeal’s judgment to the Supreme Court on two 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?
Up until the Court of Appeal, the Expert Tooling claim had proceeded as an equitable claim in dishonest assistance (a “half-secret commission claim”), following the Court of Appeal precedent set by Hurstanger in 2007. After the Court of Appeal decision in Expert Tooling, the Supreme Court’s handed down judgment in the motor finance commission claim appeals in Hopcraft and Anor v Close Brothers Limited, Wrench v FirstRand Bank Ltd and Johnson v FirstRand Bank Ltd (Hopcraft), which provided clarity regarding the legal frameworks for commission claims in general.
Hopcraft: the Supreme Court resets the law
In Hopcraft the Court decided that Hurstanger (and all cases that had proceeded on the same basis as Hurstanger since 2007) was wrong, and that there should be no difference between “half-secret” and “fully secret” claims. Hopcraft clarified what is required for both an equitable claim in dishonest assistance and a civil bribery claim in tort.
On the basis of Hopcraft, Hurstanger can no longer be relied upon as good law, and claims advanced on that basis will now face significant difficulty.
Expert Tooling had been pleaded and argued in a way no longer consistent with the law as clarified by Hopcraft. As a result of Hopcraft, it was apparent that Ground 1 in Expert Tooling would succeed and Ground 2 was no longer relevant.
Post Expert Tooling and Hopcraft: The future of business energy commission claims
Business energy commission claims will now proceed under the clarified law, pursuant to Hopcraft. Whilst each case will turn on its facts, claimants will ultimately face significant hurdles in proving their cases.
Whether or not the third-party intermediary (TPI) owed a fiduciary duty to the claimant in Expert Tooling was not under appeal in the Supreme Court. Hopcraft has provided welcome clarification on when a relationship will be fiduciary in nature. In particular, Hopcraft clarified that:
- A fiduciary relationship can only exist where a TPI expressly or impliedly agrees to an undertaking of single-minded or undivided loyalty to act for a principal, putting aside its own commercial interests, in favour of the principal’s;
- The fiduciary duty only exists because the fiduciary has undertaken not to pursue his own interests;
- A commercial transaction or arrangement, in which one party has a personal financial interest, known or apparent to the other party, in bringing the transaction into fruition, is not one in which an undertaking of undivided loyalty and altruism can readily be implied into a contract or such a duty recognised by equity; and
- Therefore, it’s important not to distort the commercial bargain between parties to a contract by too readily implying fiduciary obligations into the commercial relationship.
In the vast majority of business energy commission claims, where the customer was not paying the TPI and there is no express agreement for the TPI to put aside its own commercial interests in favour of the customer’s, the TPI will not be a fiduciary and there will be no claim (either in equity or civil bribery).
Even in the unlikely scenario in which customers are able to prove TPIs owed fiduciary duties, they will face further hurdles in order to bring a successful claim. For example, customers should need to also prove that energy suppliers had knowledge of the purported fiduciary relationship.
What’s next?
Following Hopcraft, there remains a number of points to be tested in the courts in relation to energy commission claims. Such points weren’t addressed by Expert Tooling, which had proceeded to the Court of Appeal on the basis of the law as it stood before Hopcraft. The Supreme Court’s decision in Hopcraft has provided clarification on what’s required in such claims, demonstrating that claimants have an uphill struggle to prove a claim against an energy supplier.
In the post‑Hopcraft landscape, the viability of business energy commission claims will turn less on commission disclosure in the abstract and more on whether claimants can establish the existence—and supplier knowledge—of a true fiduciary undertaking.
Energy Commission claims: How Walker Morris’ Energy Disputes experts can support you
Nick McQueen and Walker Morris’ market leading Energy Disputes team have unparalleled experience, expertise and success in this area and can bring their unique breadth of knowledge and practical insight to advice provided to their clients. Nick and the team regularly act for businesses facing energy sector commission claims.
As well as helping clients to handle and successfully defend an increasing number of claims, they help businesses to carry out health check reviews of existing contracts, operational processes and relationships, thereby helping to ‘future-proof’ against commission claims.
Please contact Nick for more information, advice or training.
Our people
Sean 's contact details
