Is electricity considered ‘goods’? (Green Deal Marketing Southern Ltd v Economy Energy Trading Ltd and others)

Is electricity considered ‘goods’? (Green Deal Marketing Southern Ltd v Economy Energy Trading Ltd and others)

Commercial analysis: Deterioration and cessation of relations between two companies that had partnered in the retail electricity market provides lawyers with an instructive case, particularly concerning the question of whether electricity is to be classed as ‘goods’. Jeffrey Chapman QC, barrister at Fountain Court Chambers, gives an overview on those details that the case of Green Deal Marketing Southern Ltd v Economy Energy Trading Ltd and others has helped bring into the light.

Green Deal Marketing Southern Ltd v Economy Energy Trading Ltd and others [2019] EWHC 507 (Ch)[2019] All ER (D) 79 (Mar)

What are the practical implications of this case?

The case of Green Deal Marketing Southern Ltd v Economy Energy Trading Ltd and others had the largest award made by an English court in a contested case of compensation to an agent whose agency had been terminated. It was made under regulation 17 of the Commercial Agents (Council Directive) Regulations 1993, SI 1993/3053, a notoriously difficult piece of legislation to interpret. It will be used in the future as an example of the way in which the court values an agent’s business at the date of termination in order to calculate the compensation due to the agent from his principal.

The court also decided (at para [143]) that electricity was ‘goods’ under SI 1993/3053 which may be important in future agency cases in order to decide whether an agency relationship is within the terms of SI 1993/3053.

What was the background?

EE was an energy company selling gas and electricity to consumers largely through pre-paid meter supplies. The claimant, GDM, had provided the defendant, EE, with a sales force whose job was to persuade consumers to ‘switch’ energy suppliers to EE. The commercial relationship between the parties started in May 2015 under the terms of a partnering agreement. On GDM’s case, that was replaced with effect from 29 June 2016 by a document entitled ‘Heads of Terms

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