Despite there being no explicit agreement on the amount of an intermediary’s commission, the client’s consent to payment of the commission may arise from the circumstances rather than an express agreement.
A recent English case (on solicitors’ fees but pertinent here) points out that informed consent to pay commission may arise when the client knows that the agent will receive commission and could have discovered the commission, but did not take the trouble to enquire. A misapprehension as to the amount of the commission will not mean that there has been no informed consent. Where the agent can show a customary usage or that the amount of commission is standard and ascertainable on enquiry, the failure of the client to make enquiries as to the amount of the commission is fatal to a contention that there has been insufficient disclosure of the amount to be earned. This includes commission earnings which are easily ascertainable from the available sources.
It also applies, as in the case of insurance intermediary commission, where the client leaves the agent to look to another party for remuneration (the insurer) or knows that the agent will receive something from the other party. The client cannot object on the ground that they did not know the precise particulars of the amount paid. As was pointed out, the client can always ask and if they do not like the answer they can take their business elsewhere.
The case is Belsner v Cam Legal Services Limited .