Very Important Update on Your Energy Claim

Supreme Court Rules in Car Finance Claims

Over the weekend you may well have heard about the Supreme Court denying / limiting compensation to millions of consumers pursing Car Finance claims Car finance: Millions denied payouts after Supreme Court ruling – BBC News

The Supreme Court decision to some extent overlaps on our energy commission claims and where it does, the Court’s observations and comments are very supportive of our claims.

What is the Basis for an Energy Commission Claim

• If the energy broker was acting as your agent, then it automatically owed you what is called a “fiduciary duty”- a duty of trust and loyalty where it had to act in your best interests
• As a fiduciary it could not act in conflict with you or make profit at your expense (so called “no conflict” and “no profit” rules).
• The energy broker by accepting commissions from an energy supplier, to which it was often “tied” by reason of hidden commercial agreements, and controlling / influencing the amount of commission it received, was acting in breach of the no conflict and no profit rules-it was not searching the market for the best deals and negotiating on your behalf and saving you money-the broker was just pushing your business to a particular supplier and seeking to maximise its commission which you paid through your inflated energy costs.
• The only way the energy broker could have acted in such a way was to have disclosed to you (in a way which was clear and easily understood) all the materials facts which gave rise to these conflicts-known as obtaining your informed consent.
• If such disclosure was not provided, then obviously you could never have given your informed consent-the energy broker was acting in breach of its fiduciary duties to you.
• The commissions received by the energy broker were bribes.
• The energy supplier, where knowing of the agency relationship between you and energy broker and without disclosing all the material facts to you, was robbing you of the energy broker’s expected loyalty to act in your best interests.
• The energy supplier was bribing the energy broker.
• In such circumstances both the energy broker and energy supplier are equally liable to you under the law of bribery.
• You can recover the commission that was paid to the broker and which you funded.

Our Own Energy Commission Appeal to the Supreme Court

As you will know from our previous newsletters and updates (now available here) we have an energy commission claim heading to the Supreme Court. The appeal is dealing with an energy supplier’s liability in circumstances similar to the above and whether the law of bribery is engaged. The Supreme Court in the Car Finance Claims is very helpful in our appeal which will be heard on an expedited basis given its importance and wider impact on all other energy commission claims. We hope the appeal may be by the end of the year.

What Now?

1. If your claim is already litigated in the courts, then most of these claims are “paused” awaiting the outcome of our above appeal. There is nothing for you to do unless we contact you.
2. If your claim has been notified to energy suppliers / brokers but has not yet been litigated then it is really important that we now progress claims into the courts.Your claims will then similarly be paused in the court and await the outcome of our Supreme Court appeal, but this action will protect against energy suppliers / brokers being able to successfully defend what are otherwise very strong claims, on the basis they were not brought before the courts in good time.Where possible we are looking to push claims into litigation in groups-where there are common suppliers  or common brokers – this improves the prospects of success for everyone within the group.
3. The next group claims being prepared against energy suppliers are:
   

   Group Number	Supplier	Energy Broker
   1	TotalEnergies Gas & Power	Utilitywise Plc
   2	British Gas	Utilitywise Plc
   3	Engie	Utilitywise Plc
   4	SSE	Utilitywise Plc

4. You already have been or will shortly be contacted by our team if your claim falls within one of the above groups.
5. The next group claims being prepared against energy brokers are:
   

   Group Number	Energy Broker	Energy Supplier
   1	Northern Gas & Power	All suppliers
   2	UK Direct Business Solutions	All suppliers
   3	Bionic Services	All suppliers
   4	Inenco	All suppliers

6. It is very important that you promptly respond to our telephone calls and emails and engage with us to progress the group claims. You already have been or will shortly be contacted by our team if your claim falls within the above groups.
7. If your claim doesn’t fall within any of the above 8 groups, don’t worry, we will be in touch to actively progress your claim-probably in the Autumn this year.

What can I do in the meantime?

Whilst we await the outcome of this landmark appeal there are 3 simple things you can do to help improve prospects of success in your claim as set out in our previous newsletter:

1. Find all your brokered energy contracts for all your electricity and gas meters for all your premises / organisations. Go back in time to when you first started using an energy broker. Make sure we know about these contracts. This will maximise the potential value of your claim.
2. Make sure you search and preserve all relevant documents in your claim-we refer you to our guide on “Disclosure in your Energy Commission Claim”.
3. Make sure we know about the key individuals in your organisation who dealt with the energy brokers-if these individuals are soon to leave or retire from your organisation we need to know now so that we can obtain their witness evidence before departure.

Making sure you receive communications from us

We use email to communicate with you, both directly from your claims handler and with more general information such as this email. We have had recent feedback that our newsletter was not received by some of you, as such we ask that you follow these steps to ensure you always get our email messages.

1. Please do not mark our emails as spam. This can prevent you from getting key information about you case specifically as well as general emails. If you do not wish to receive specific types of email, please let us know using the energy@bc-legal.co.uk email address or directly through your handler and we will remove you.
2. If you have marked previous emails as spam or get an alert, please use the “Not junk/spam” button in your email client.
3. Add the domain “bc-legal.co.uk” to your safe senders / domain whitelist. This action may need be performed by your network administrator but will guarantee you continue to receive our emails.

We hope you find this useful but if you have any queries please don’t hesitate to contact us.

Best regards

The Energy Team