Some years it seems like there are no cases of any real importance. 2025 is not one of those years.

Last week a strong Court of Appeal doubled down on a key element of the landmark Johnson v FirstRand decision on secret commissions in motor finance (about to be heard before the Supreme Court). In Expert Tooling and Automation Ltd v Engie Power Ltd [2025] EWCA Civ 292 the Court held that an energy broker owed fiduciary duties not to accept half-secret commissions for broking an energy supply agreement without getting fully informed consent from its client.

Although the client was aware that the broker would be paid a commission, it was not told the amount (which was substantial) or that the commission would be funded by increasing the energy unit rate paid by the client (an arrangement not dissimilar to the discretionary commission agreement in Johnson).

The key findings were:

• Fiduciary duty: the broker, as the client’s agent, owed strict fiduciary duties including not profiting from the relationship without fully informed consent. The Court held that the broker breached this duty by failing to disclose material facts about the commission structure.
• Informed consent: The Court confirmed that a principal’s informed consent requires full disclosure of all material facts – not mere awareness that a commission would be paid. The fact that the client could have asked for more information did not excuse the lack of disclosure.
• Accessory liability: the energy supplier, which was the party paying the commission, could only be liable for procuring the broker’s breach if it acted dishonestly. As the client had not pleaded dishonesty or run that case at trial, the claim failed on that procedural point.
• Limitation: The Court held that the cause of action accrued upon payment of the commission, not entry into the underlying contract. The decision of the first instance judge that the claim in respect of the first energy supply contract was time-barred was therefore overturned.

With the Supreme Court about to have its say on the Johnson appeal, this decision underlines the clear line at Court of Appeal level that brokers will commonly owe strict fiduciary obligations requiring clear, proactive disclosure of commission arrangements that may be said to give rise to conflicts of interest. That disclosure needs to be fulsome in order to obtain informed consent.

More hopefully for half-secret commission payers (be they lenders or energy suppliers) the judgment also confirms that accessory liability in equity (where third parties are said to have induced a breach of fiduciary duty) requires proof of dishonesty, consistent with established principles in Brunei and Twinsectra. This issue will inevitably be a key battleground in the Johnson appeal and other cases targeting the payers of half-secret commission instead of the receiving brokers.

The decision may well be subject to further appeal given the pending Supreme Court consideration of Johnson.