The energy broker undisclosed commission market represents one of the largest untested claims landscapes in UK commercial litigation. With an estimated £300 billion in claim value across the non-domestic energy sector, and a legal framework that is still being defined at the highest judicial level, the opportunity for law firms with appropriate expert support is substantial. Unlike PPI or motor finance, energy broker commission claims operate on fundamentally different legal foundations — and getting those foundations wrong is the most common error practitioners make.
The Legal Basis: Agency Law, Not the Consumer Credit Act
Energy broker undisclosed commission claims do not proceed under section 140A of the Consumer Credit Act 1974. There is no credit agreement in a standard commercial energy supply contract. The Consumer Credit Act does not apply, and the unfair relationship route that underlies Plevin and Hopcraft is not available.
Energy broker claims are agency law claims. The broker acts as agent for the business customer in procuring the energy supply contract. As agent, the broker owes the customer a duty to act with loyalty and on an impartial, disinterested basis. Where the broker receives commission from the energy supplier — built into the unit rate the customer pays — without the customer's full and proper knowledge of that commission, the broker is in breach of that duty. The commission is, in law, a secret commission paid to an agent in breach of its duty to its principal.
This distinction matters absolutely. The legal tests, the route to claim, the available remedies and the quantum methodology are all different from PPI or motor finance. Expert reports that apply the wrong legal framework are fundamentally flawed and will not withstand scrutiny.
Disclosure Is Binary: Partial Disclosure Is No Disclosure
A critical principle that practitioners must understand is that disclosure of commission in an energy broker arrangement is binary. Either the commission was fully and properly disclosed to the client — with clear information about the amount, the basis on which it was calculated, and how it was embedded in the unit rate — or it was not disclosed. There is no middle ground.
Partial disclosure does not protect the broker or the energy company. A vague reference in a terms of business document to the possibility that commission might be paid, a generic statement that the broker is remunerated by suppliers, or a contractual clause buried in small print does not constitute proper disclosure. The obligation to obtain the client's fully informed consent rests entirely with the broker. The client has no obligation to ask. Where full and proper disclosure was not made, the commission is secret — and the legal consequences follow regardless of how much was disclosed in general terms.
This was confirmed by the Court of Appeal in Expert Tooling and Automation Ltd v Engie Power Ltd, where the court held that the broker must ensure the client has full knowledge of all material circumstances — specifically the amount of the commission and the fact that it is embedded in the unit rate the client will pay. In practice, the vast majority of energy broker commission arrangements in the non-domestic sector did not come close to meeting this standard. The Ofgem regulatory changes introduced in October 2024 — requiring energy suppliers to disclose the total pounds sterling commission paid to third parties on all non-domestic contracts — are a direct acknowledgment of how widespread non-disclosure was.
The Remedy: Restoring the Client to Their Original Position
Where an energy broker has received secret commission in breach of its duty to the client, the remedy is restitutionary. The purpose is to restore the client to the position they would have been in had the commission not been paid — and to ensure that the energy company retains no profit whatsoever from a transaction tainted by the broker's breach of duty.
The commission paid to the broker came directly out of what the client paid in their energy bills. It was embedded in the unit rate — the client was effectively funding the broker's remuneration through an inflated price without knowing it. On a restitutionary analysis, the client is entitled to recover the full amount by which they overpaid as a result of the commission arrangement. The energy company, which structured the pricing to enable the broker's commission to be extracted from the client's payments, is stripped of any profit or benefit derived from that arrangement. The client is put back where they started; the energy company keeps nothing from the overcharge.
The methodology for calculating the restitutionary figure follows the principles established in Wood v Commercial First Business Ltd [2021] EWCA Civ 471. The expert must establish: the total amount paid by the client under the energy supply contract; what the client would have paid under a contract priced without the commission element in the unit rate; and the difference between those two figures. The commission is not a separate head of claim added on top — it is contained within the restitution calculation itself, which quantifies the precise amount the client overpaid as a result of the undisclosed commission arrangement.
This is a forensic accounting exercise requiring access to the original contract terms, the commission rate applied to each unit of energy consumed, consumption data across the contract period, and appropriate comparator pricing to establish what the unit rate would have been absent commission. It cannot be performed without the relevant data and specialist expert analysis.
Expert Tooling v Engie: The Defining Case
The litigation that has brought energy broker commission claims into sharp focus is Expert Tooling and Automation Ltd v Engie Power Ltd, which progressed from the High Court through the Court of Appeal to the Supreme Court. Expert Tooling engaged Utilitywise, an energy broker, to procure electricity supply contracts with Engie. Utilitywise received commission from Engie, built into the unit rate Expert Tooling paid — adding between 9% and 31% to the unit cost across five contracts, with total commission exceeding £130,000. Expert Tooling was not properly informed of the commission amount or how it was embedded in its unit price.
The Court of Appeal confirmed that the broker had breached its fiduciary duty and set a high standard for what constitutes proper disclosure. The case subsequently proceeded to the Supreme Court, which determined that no further matters of law required consideration following the Hopcraft ruling. The Supreme Court remitted the case back to the Court of Appeal for the matter to be settled on its facts. The legal framework governing energy broker commission claims is therefore now settled. Practitioners can proceed on the basis of established law without waiting for further judicial guidance.
Where the broker is no longer available to sue — Utilitywise went into administration in 2019 and was dissolved in 2022 — practitioners must consider the accessory liability route against the energy supplier directly. With the legal framework now settled following the Supreme Court's ruling, the focus shifts to the facts of individual cases: what was disclosed, when, and whether it met the standard required.
The £300 Billion Market
The estimated £300 billion claim value reflects the breadth of the non-domestic energy sector. Energy brokers have been the dominant route to market for commercial energy contracts for two decades, and commission was routinely embedded in unit rates across that entire period without proper disclosure. The customer base spans the full range of UK commercial and industrial energy users — manufacturing businesses, retail chains, hospitality operators, property portfolios, public sector bodies.
Average claim values are substantially higher than in the consumer finance sector. In Expert Tooling alone, commission across five contracts exceeded £130,000. Large energy users with multi-site portfolios or high consumption profiles may have claim values running into hundreds of thousands of pounds per contract cycle. The combination of high individual claim values, a broad potential claimant pool and a clear legal basis for recovery makes this one of the most significant litigation opportunities currently available to law firms.
What Law Firms Should Do Now
- Identify the correct legal basis — agency law and fiduciary duty, not the Consumer Credit Act — before advising clients or issuing proceedings
- Apply the binary disclosure test: partial disclosure does not protect the energy company or broker, and the obligation to obtain informed consent rested entirely with the broker
- Obtain the original energy supply contracts, broker terms of business and any commission documentation via DSAR or pre-action disclosure
- Ensure expert reports apply the Wood v Commercial First restitutionary methodology and correctly identify and quantify the commission embedded in the unit rate
- Consider limitation carefully — where commission was not properly disclosed, section 32 of the Limitation Act 1980 deliberate concealment arguments may be available to extend the limitation period
- Where the original broker is dissolved or insolvent, consider the accessory liability route against the energy supplier — the legal framework is now settled following the Supreme Court's ruling in Expert Tooling
Rivermead's Approach
The Rivermead Partnership produces expert witness reports in energy broker undisclosed commission claims. Our reports identify and quantify the commission embedded in the energy pricing structure and calculate the restitutionary figure applying the Wood v Commercial First methodology — establishing precisely what the client overpaid and to which they are entitled on a restitutionary basis, ensuring the energy company retains no profit from the arrangement. We work with law firms acting for business claimants and can provide reports suitable for pre-action correspondence, mediation and court proceedings.
If you have energy broker commission cases you wish to discuss, or instructions to place, please request a call back and we will be happy to advise.