Costs order confirmed despite procedural error: private hearing heard strike-out application
A tribunal confirmed a costs order against a former employee even though the strike-out application was heard at a private hearing, which was a procedural error. The employee's reconsideration application was refused.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant applied for reconsideration of a costs order made on 25 May 2022.
- The preliminary hearing on 25 May 2022 was listed as a private case management hearing but the claimant's strike-out application was heard.
- The claimant's strike-out application was found to be completely without merit.
- Both parties attended the hearing expecting the strike-out application to be determined.
- The tribunal confirmed the original costs order despite procedural errors.
Timeline
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Notice of Hearing
Notice issued for a private case management hearing on 25 May 2022 to discuss disclosure issues.
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Preliminary Hearing
Private hearing where the claimant's strike-out application was heard and a costs order was made against the claimant.
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Costs Order Sent
The costs order was sent to the parties.
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Written Reasons for Costs Order
Written reasons for the costs order were dated.
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Written Reasons Sent
Written reasons sent to the parties.
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Reconsideration Application
Claimant applied for reconsideration of the costs order.
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Reconsideration Hearing (in chambers)
Employment Judge Porter considered the application on the papers.
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Judgment on Reconsideration
The costs order was confirmed; reconsideration refused.
The legal issue
Whether a costs order should be revoked because the strike-out application that led to it was heard at a private case management hearing, which is not permitted under tribunal rules.
The outcome
The tribunal refused the claimant's application to reconsider the costs order made on 25 May 2022.
The judge acknowledged that the hearing was listed as a private case management hearing, and it was an error to hear the strike-out application there. However, the claimant's representative had confirmed at the hearing that the strike-out application was pursued, and both parties attended expecting it to be determined. The claimant did not raise the procedural point at the time.
No compensation was awarded as the costs order was confirmed.
Lessons & takeaways
- If you believe a hearing is not properly listed to hear a particular application, raise the issue at the start of the hearing.
- Tribunals have discretion to confirm decisions even if there was a procedural error, if the error did not cause injustice.
- When applying for reconsideration, focus on new points that could change the outcome, not just re-arguing old ones.
- Ensure you understand the type of hearing listed (private or open) and what applications can be heard at it.
What this case shows in practice
This case highlights the importance of raising procedural objections at the earliest opportunity. The former employee applied for reconsideration of a costs order, arguing that the strike-out application should not have been heard at a private case management hearing. The tribunal agreed that this was a procedural error, but noted that the employee's own representative had confirmed at the hearing that the strike-out application was being pursued. Neither party objected at the time.
What the losing side could have done differently
The employee could have raised the procedural issue at the start of the May 2022 hearing. By allowing the hearing to proceed without objection, the employee effectively waived the right to complain later. The tribunal also noted that the employee's reconsideration application largely repeated arguments already made, rather than presenting new evidence or compelling reasons to change the decision.
Why this result matters for similar claims
The decision confirms that procedural errors do not automatically invalidate a tribunal order. The overriding objective of dealing with cases fairly and justly means the tribunal will consider whether the error caused any real injustice. Here, because both parties had prepared for the strike-out application and the employee did not object, the original costs order stood. Employees facing similar situations should act promptly if they believe a hearing is not properly constituted.
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