Costs application refused: reconsideration fails on 'new' emails
A tribunal has refused to reconsider its decision not to award costs against a former employee who withdrew an amendment application, ruling that emails from March 2022 were not new evidence and would not have changed the outcome.
1 min read · Last updated 18 May 2026
Case details
- #costs
- #reconsideration
- #unreasonable-conduct
- #late-withdrawal
- #email-evidence
Key facts
- The claimant withdrew his application to amend his claim at a preliminary hearing on 12 September 2022.
- The respondent applied for costs in connection with the amendment application and its withdrawal.
- The Tribunal refused the costs application at the hearing.
- The respondent applied for reconsideration of the costs refusal, relying on emails from March 2022.
- The Tribunal confirmed the original decision, finding the emails were not new evidence and would not have changed the outcome.
Timeline
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Claimant applies to amend claim
The claimant made an application to amend his claim, introducing new claims.
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Respondent's email warning of costs
The respondent emailed the claimant, stating they would seek to recover costs if a further preliminary hearing was needed.
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Respondent's email alleging unreasonable conduct
The respondent emailed, stating the claimant's new claims were misconceived and amounted to unreasonable conduct.
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Respondent intimates costs risk
The respondent sent an email intimating that the claimant was at risk of costs.
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Respondent's formal costs application
The respondent made a formal application for costs. The claimant withdrew his amendment application the same day.
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Preliminary hearing on costs
The Tribunal heard the respondent's costs application and refused it. The claimant was represented by counsel, the respondent by counsel and solicitor.
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Written reasons for costs decision
The judge signed written reasons for the costs refusal.
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Written reasons sent to parties
The written reasons were sent to the parties.
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Respondent applies for reconsideration
The respondent applied for reconsideration of the costs refusal, relying on emails from March 2022.
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Claimant opposes reconsideration
The claimant submitted a written response opposing the reconsideration application.
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Reconsideration judgment
Employment Judge Brian Doyle confirmed the original decision, refusing to reconsider the costs refusal.
The legal issue
Whether it was necessary in the interests of justice to reconsider the tribunal's refusal to award costs to the respondent, given that the respondent had emails from March 2022 that were not presented at the original costs hearing.
The outcome
The tribunal confirmed its original decision to refuse the respondent's costs application.
The key reason was that the emails from March 2022 were not new evidence – they existed at the time of the original hearing and could have been presented. The respondent had ample opportunity to bring them to the tribunal's attention but did not. The tribunal also noted that even if the emails had been considered, they would not have changed the outcome because the claimant's withdrawal of the amendment application was still reasonable in the circumstances.
No compensation was awarded as this was a costs application by the respondent, which was refused.
Lessons & takeaways
- If you have evidence supporting a costs application, present it at the original hearing – you cannot rely on it later as 'new evidence' to seek reconsideration.
- Costs warnings by email may not be treated as formal costs warnings if they are part of ongoing correspondence and not clearly flagged as such.
- A party who withdraws an application promptly after receiving a formal costs warning may still be seen as acting reasonably, especially if earlier communications were ambiguous.
When is a costs warning not a costs warning?
This case shows the importance of clear and formal communication when warning an opponent about potential costs. The respondent had sent emails in March 2022 stating that the former employee's new claims were 'unreasonable and misconceived' and that it intended to apply for costs. But at the costs hearing in September, the former employee argued – and the tribunal accepted – that he had not been properly put on notice until the respondent's formal costs application on 6 September, which prompted him to withdraw his amendment the same day.
The tribunal refused the respondent's costs application, finding the former employee's conduct was not unreasonable. The respondent then sought reconsideration, arguing that the March emails should have been considered. But the tribunal held that these were not new evidence – they existed at the time of the hearing and could have been produced. The respondent's own counsel and solicitor were present at the hearing and had access to the emails.
What the losing side could have done differently
The respondent could have ensured that the March emails were before the tribunal at the original costs hearing. If they believed the former employee's submissions were misleading, they should have challenged them at the time with the documentary evidence. Waiting until after the decision to seek reconsideration is unlikely to succeed unless the evidence is genuinely new and could have changed the outcome.
Why this matters for similar claims
This case is a reminder that reconsideration is not a second chance to present evidence that was available but not used. It also highlights that informal email exchanges may not carry the same weight as a formal costs warning. For anyone considering a costs application, the message is clear: if you have evidence, bring it to the hearing – and if you want to warn someone about costs, do so in clear, unambiguous terms.
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