Legal obligations and practical steps after Expert Tooling v Engie

The recent Court of Appeal decision in Expert Tooling and Automation Ltd v Engie Power Ltd [2025] EWCA Civ 292 has reignited scrutiny over the fiduciary duties of brokers—especially when it comes to undisclosed commissions.

The judgment sends a clear message: transparency is not optional. Even if non-disclosure is considered standard industry practice, the law requires more. This ruling provides important lessons on compliance, liability, and trust for brokers, clients, and third-party payers alike.

Case summary: What happened?

The parties

• Expert Tooling (Client): Engaged Utilitywise (Broker) to negotiate energy contracts with Engie (Supplier).
• Utilitywise (Broker): Received a commission from Engie, built into the price ultimately paid by Expert Tooling.

The issue

While Expert Tooling was aware that Utilitywise would earn a commission, the specifics were not disclosed—including the amount, the payment mechanism, or how it impacted the contract pricing.

The court’s decision

• Breach of fiduciary duty: Utilitywise failed to obtain fully informed consent from Expert Tooling.
• No liability for Engie: While Engie knew a commission was paid, there was no dishonesty or active concealment, so it could not be held liable.

Key legal takeaways

1. Fiduciary duties require full transparency

Brokers must disclose:

• The existence of any commission;
• The amount or the method of calculation; and
• Whether the payment affects the client’s costs

Relevant case law:

• Hurstanger Ltd v Wilson [2007]: Partial disclosure constitutes a breach.
• Johnson v FirstRand Bank [2024]: Non-disclosure doesn’t always lead to unfairness—but this is very case-specific.

2. Informed consent must be explicit

Industry norms or assumptions don’t excuse non-disclosure.

• Simply saying “this is how things are done” won’t hold up in court; and
• Even experienced or sophisticated clients are owed full transparency.

3. Third-party liability requires dishonesty

• Mere knowledge of a commission is not enough to establish liability; and
• However, if a supplier actively participates in hiding the commission, they could be implicated.

Practical steps to ensure compliance

For brokers and agents

1. Disclose everything: Not just that a commission exists, but how much, who pays it, and whether it affects the client’s price.
2. Obtain written consent: Signed acknowledgments are essential.
3. Train your teams: Everyone should understand fiduciary obligations and disclosure requirements.

For clients (principals)

1. Ask direct questions: Don’t assume—ask how much commission is involved and who’s paying it.
2. Request detailed fee breakdowns: Ensure you’re not unknowingly covering hidden costs.
3. Keep records: Document all communications and agreements to protect your position in case of disputes.

For third parties (e.g., suppliers)

1. Avoid secret arrangements: If the broker hides commission details, you could be drawn into litigation.
2. Promote transparency: Encourage brokers to disclose commissions openly from the start.

Why this matters beyond legal compliance

This isn’t just a technical legal issue—it’s about trust and reputation. Clients who feel misled may walk away, seek legal redress, or damage your credibility in the market.

In an industry where relationships and integrity matter, transparency isn’t just a legal box-tick—it’s good business.

What should you do now?

• Brokers: Review your disclosure processes—are they fully transparent and clearly documented?
• Clients: Don’t take your broker’s word for it—ask for specifics and don’t hesitate to push back.
• Legal & compliance teams: Revisit your contracts, disclosure templates, and training materials to ensure alignment with this ruling.