Supreme Court Boosts Business Energy Commission Claims

The Supreme Court has recently delivered its judgment in the highly anticipated car finance cases of Johnson v FirstRand Bank Limited and Wrench v FirstRand Bank Limited  and Hopcraft v Close Brothers Limited (Johnson).

These cases concerned the payment of commissions in the motor industry. In many instances, when a consumer purchased a car on finance, a commission payment was concealed within the repayment plans. This landmark decision has implications not only for the motor industry but also for business energy claims.

The leading case in the business energy claims sector is Expert Tooling Limited v Engie Power Limited (Expert Tooling), which is expected to be heard by the Supreme Court in 2026. This case centres around the payment of a half secret commission to an energy broker.

Key Takeaways from Johnson and Implications for Business Energy Claims

The recent decision in Johnson is set to have a significant influence on the pending appeal in Expert Tooling. Once that appeal is resolved, further clarity on business energy commission claims will follow, but Johnson already provides several important takeaways.

No longer a distinction between ‘fully secret’ and ‘half secret’ commissions

The Supreme Court has overturned the approach in Hurstanger, confirming that the crucial question is whether the principal gave fully informed consent. This places the burden squarely on the energy broker or supplier to prove they made full disclosure of all material facts. If you were not told all the facts about your broker’s commission, you did provide your informed consent.

For business energy customers, this is big news.

Many brokers and suppliers disclosed only that a commission existed, but not:

• The exact amount
• That it was added to your unit rate
• That it influenced contract length or structure

Being put on notice is not disclosure

The fact that a business might be put on notice, for example, because they did not pay a fee directly to the broker, does not amount to full disclosure.

Liability Without Proving Dishonesty

The Supreme Court found in Johnson that the tort of bribery exists and it requires the existence of a fiduciary duty. The decision in Wood v Commercial First Business Limited was reversed by the Supreme Court.

The judgment confirms that, in certain cases, claimants pursuing accessory liability for undisclosed commissions will not always need to prove dishonesty. This significantly widens the scope for claims in the energy sector, as it is likely to allow challenges to commission arrangements even where dishonesty cannot be proven. For businesses, this opens up fresh opportunities to recover losses where a broker or supplier was involved in or facilitated non-transparent commission payments. 

The road ahead with Expert Tooling

The Supreme Court’s decision in Expert Tooling will be pivotal in shaping the scope of future business energy claims. Together with Johnson, it is likely to open the door to a wider range of potential claims against brokers and suppliers who fail to meet the high threshold for full and frank disclosure.

 What This Means for Businesses 

Secret commissions are now in sharper focus -Whether a commission was fully hidden or only partly revealed makes no difference. If you were not given full and clear details, you may be entitled to bring a claim to recover the commission amounts you have paid.

An assumption is not disclosure – Even if you assumed your broker was paid by someone else, that is not enough, the full facts must have been openly provided to you.

Bribery claims are more accessible – At common law, you can claim for bribery without having to meet the extra hurdles found in other types of legal action.

More changes ahead – The upcoming Expert Tooling decision could broaden the scope for bringing bribery claims, with potential implications for many past and current business energy contracts.

Act now to protect your position

If your business has used an energy broker in recent years, you could be owed significant sums. Waiting could mean missing strict legal deadlines or losing access to vital evidence. Our specialist team is already acting for businesses in similar claims and can move quickly to protect your rights.

If your broker arranged your contract and you were not told exactly what they earned and how, you may be owed thousands. 

Contact us today to start your claim.