Expert Tooling and Automation Limited (Appellant) v Engie Power Limited (Respondent)

Case summary

Case ID

UKSC/2025/0055

Parties

Appellant(s)

Expert Tooling and Automation Limited

Respondent(s)

ENGIE POWER LIMITED

Issue

(1) Was the Court of Appeal wrong to distinguish between a “half secret’” and a “fully secret” commission for the purpose of determining whether the commission should be treated as a bribe that attracts restitutionary liability for the amount of the bribe? (2) Alternatively, if “half secret” commissions are to be treated distinctly from “fully secret” commissions, was the Court of Appeal wrong to apply a test of dishonesty at all and, in any event, a test which is inconsistent with the decision in Hurstanger and which required more than that the commission-payer knew of the existence of a fiduciary relationship?

Facts

This case concerns the liability of someone who pays commission to the agent of a third party principal, where the circumstances of the commission are only partially disclosed to the principal (sometimes referred to as a “half-secret” commission case). The claimant, Expert Tooling and Automation Limited (“Tooling”), is a company carrying on business as a manufacturer of tools and related equipment and machinery. It consumes significant amounts of energy. The defendant, Engie Power Limited (“Engie”), supplies electricity. Tooling used the services of a third party broker, Utilitywise Plc (“UW”), to negotiate and, in some cases, execute on its behalf electricity supply contracts with Engie. UW was paid nothing by Tooling, but received a commission from Engie, the amount of which was added to the unit price Tooling paid for electricity under its contracts with Engie. Tooling was aware that UW Would be paid commission by Engie, but did not know other material matters, including how much. UW was dissolved on 19 May 2022, having gone into administration on 13 February 2019. Tooling claimed that it was entitled to recover from Engie the amount of the commissions it had paid to UW. An important recent decision concerning secret commissions (or bribes) was delivered by the Court of Appeal in Johnson v FirstRand Bank Limited [2024] EWCA Civ 1282. That decision is currently under appeal to the Supreme Court. The oral hearing took place in April. The High Court dismissed Tooling’s claim. The Court of Appeal allowed Tooling’s appeal in part but left undisturbed the order of the High Court dismissing the claim. The Court of Appeal granted Tooling permission to appeal to the Supreme Court in respect of the two Issues set out above. The Court of Appeal refused Engie permission to cross-appeal in relation to the issues of informed consent and limitation.

Date of issue

1 April 2025

Case origin

Appeal As of Right

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