The Court of Appeal has delivered its much-anticipated judgment on energy broker commission claims this week in the case of Expert Tooling v Engie.

The case centred on Utilitywise selling five contracts in 2016 and 2017, with start dates extending into summer 2022.

These included 5p uplifts, with some completed under Level 2 LOAs. Utilitywise informed its customer (Expert Tooling) that it may receive commission during a phone call, and evidence showed that Tooling could have discovered the amount of commission if it had asked.

However, this fell short of being considered “informed consent”.

A number of key elements weren’t explained to the customer, and as a result, the Court found that Tooling had not provided informed consent to the commission, meaning Utilitywise breached its fiduciary duties.

The fact Utilitywise owed a fiduciary duty to its client was accepted by both parties in court, likely due to the use of Level 2 LOAs for all contracts.

The court outlined factors that could help ensure informed consent but stopped short of defining a clear threshold.
Examples cited by the Court included:

• The commission amount.
• An explanation of how commission is earned (a calculation showing how the broker earns money via uplift × consumption × contract term).
• That Utilitywise was able to set its own uplift on three of the contracts, as it did so under a Level 2 LOA.
• That Engie had agreed to pay up to £11.5 million in additional commission if Utilitywise hit certain sales targets as part of a campaign to increase volume directed to Engie.
• That Utilitywise may have been influenced by other factors when deciding which supplier to place business with.

The lack of clarity provided by Utilitywise on many of these points weakened its ability to meet the standard of informed consent — and as such, it had not obtained valid consent.

The definition of informed consent is well established in law. Its application varies across different markets.

In the insurance sector, FCA rules state that if a client is informed of the existence of commission, full disclosure is only required upon request.
Further case law will likely be required to clarify what constitutes informed consent within the energy sector.

The Court also held that, although the customer was sophisticated, this was not enough to overcome Utilitywise’s failure to disclose key facts.

The Court of Appeal decided that the start date for the breach was the date the energy supply commenced, not the date the contract was sold.

The appeal judges also found that the claimant’s argument — that the six-year limitation period should not apply due to deliberate concealment of commission — was not supported.

This was because the customer could have discovered the commission if they had chosen to, and the Court referred to the decision in Canada Square v Potter (2023).

Importantly, the judge clarified that in a straightforward commission case, the limitation period would begin on the contract’s start date — meaning a claim would be time-barred after six years.

The ECA supports the principle that brokers should be transparent with their customers — and clearly, Utilitywise was not.

The vast majority of ECA members have been disclosing commissions in LOAs and terms since 2018/19, partly due to pressure from suppliers, but also because many brokers proactively took the lead.

This case provides helpful clarity around the fiduciary duty brokers owe to customers.

The reference to Canada Square on limitation is also useful.

The increased requirement for full fee disclosure, mandated by Ofgem since 2022 and expanded in 2023, supports stronger transparency in more recent cases.

The judgment is extremely specific to Utilitywise, Engie, and their sales practices from almost a decade ago.

There is a wide variety of broker terms and conditions, and the threshold for informed consent remains unclear.

Further test cases will need to be heard to examine stronger terms and conditions and determine what passes — and what falls short of — that bar.

In our view, this will take time, especially if a case proceeds to the Supreme Court. During this period, brokers will be targeted by heavy-handed claims farmers, seeking to apply this judgment as a blanket approach to all terms and conditions.

It is clear that some brokers — including one or two of the industry’s largest — did not update their terms for some time.

There will undoubtedly be casualties where informed consent was not properly obtained. The use of Level 2 LOAs and ambiguous terms has compounded the issue.

A rise in insolvencies and a slowdown in M&A activity are likely until greater clarity emerges through further case law.

The supplier may see this as a win, but commercial relationships between brokers and suppliers will continue to face scrutiny in future cases.

Volume bonuses, supplier-funded deposits into broker accounts, auto-renewal schemes designed to benefit only a small number of suppliers, and brokers placing business with only upfront-paying suppliers are all likely to come under review.

The bigger question — why some brokers place high volumes of business with suppliers who don’t offer the best prices but do offer strong commercial incentives — will also attract increased attention, with more suppliers expected to be drawn into future litigation.

Given the precedents set in this judgment, brokers who failed to uphold their fiduciary duties may have much to fear.

1. We will obtain independent legal opinion to dissect the judgment in more detail and circulate it to our members.
2. We will develop draft Letter Before Action (LBA) defence templates for brokers who do have informed consent, to help them demonstrate to claims management firms how their terms differ from those in the Tooling case.
3. We are here to answer any questions our members may have, and we expect to organise a future webinar to explore this topic further with legal experts.

The energy market is evolving, and with it, the role of brokers is being reshaped.

Transparency, professionalism, and trust are becoming non-negotiables—and the brokers who embrace these changes will be the ones who thrive in the years ahead.

At the Energy Consultants Association (ECA), we’re committed to helping brokers stay ahead of these changes. Our guidance on ADR, regulatory compliance, and best practices ensures our members not only meet but exceed industry expectations.

Brokers who are part of the ECA are already leading the way in professional standards.

✔ Access to expert-led training and guidance on regulatory changes
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If you would like to become a member today and share in tomorrow’s success, please contact enquiries@energyconsultantsassociation.co.uk with the following information:

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If you have any questions, please reach out to Joe Wilson at joe.wilson@energyconsultantsassociation.co.uk or call 07875343161.

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