Expert Tooling and Automation Limited v Engie Power Limited

A fiduciary’s core duties are defined by the agency contract. Matters such as sophistication, vulnerability and what the principal could have discovered ordinarily concern informed consent, not a narrowing of the duty. Fully informed consent requires disclosure of all material circumstances, including the nature and extent of the fiduciary’s interest and the conflict. It is insufficient to put the principal on inquiry or rely on an unproved trade practice.

In a half-secret commission case, the payer’s liability is accessory liability for procuring or assisting the agent’s breach, not a new primary claim for money had and received. Dishonesty is essential. A claim for equitable compensation accrues when the commission is paid. The appeal succeeded on the fiduciary-duty and limitation issues, but the claim against the payer remained dismissed because dishonesty had not been pleaded or proved.

Expert Tooling and Automation Limited appointed Utilitywise Plc to negotiate energy contracts with Engie Power Limited. Utilitywise was paid commission by Engie, and Tooling knew that commission would be paid, but was not given material details about its amount, funding or payment structure.

The High Court found that Utilitywise was Tooling’s fiduciary agent, but held that its duties did not require disclosure of those matters. Alternatively, it found informed consent and dismissed the claim. It also held that Engie’s liability would require dishonesty and that the claim concerning the first contract was time-barred. The appeal concerned the scope of fiduciary duty, informed consent, accessory liability, limitation and a proposed new dishonesty case.

1. Disposition. The appeal was allowed in part. Grounds 1–4 and 6 succeeded. Ground 5 failed, ground 7 did not alter the result, and permission to add the dishonesty ground was refused. The dismissal of the claim against Engie therefore remained in place.
2. Scope of fiduciary duty. The scope of an agent’s fiduciary duties is shaped by the contract of agency. Here, nothing in the contract authorised Utilitywise to receive the undisclosed commission or modified its core duty of loyalty. The judge therefore erred by treating Tooling’s knowledge, sophistication and ability to ask questions as matters narrowing the duty. Those matters went to informed consent.
3. Informed consent. The fiduciary bears the burden of making full disclosure and obtaining consent. Disclosure must identify the material circumstances, the nature and extent of the fiduciary’s interest and the conflict to which consent is sought. It is insufficient to give information that merely puts the principal on inquiry. The undisclosed commission rate, its addition to the unit price, the incentive to determine the rate, and the substantial up-front payment were material matters which might have affected Tooling’s decisions. Neither sophistication nor an alleged industry practice cured the failure to disclose them. A trade usage would require strict proof of certainty, reasonableness, notoriety and universal acceptance, which was absent.
4. Engie’s liability. Hurstanger v Wilson treated a payer’s liability in a half-secret commission case as accessory liability for procuring the agent’s breach, not as a new primary restitutionary liability. Under Royal Brunei Airlines Sdn Bhd v Tan and Twinsectra v Yardley, dishonesty is an essential element. FirstRand did not establish automatic liability whenever disclosure was partial; its broader passages had to be read in the context of findings that the lender had actively encouraged concealment. The present evidence could not safely establish Engie’s state of mind without a trial directed to dishonesty.
5. Limitation. The claim pleaded was for equitable compensation based on commissions paid by Engie. The cause of action was therefore complete only when commission was paid, not when the supply contract was entered into. The first-contract claim was not time-barred. The alternative issue under section 32 of the Limitation Act 1980 was unnecessary, although the judge’s view on reasonable diligence would otherwise have been upheld.

• Court of Appeal (Civil Division) — In [2025] EWCA Civ 292, the appeal was allowed in part on grounds 1–4 and 6. The dismissal of the claim was upheld because Engie’s accessory liability required dishonesty, which had not been pleaded or proved.
• High Court of Justice, Business and Property Courts in Leeds, Business List (ChD) — HHJ Saffman dismissed Tooling’s claim under case number BL-2024-LDS 0000003, holding that there was no relevant breach of fiduciary duty, alternatively that informed consent had been given, and that Engie’s liability was not established.