In the course of a judgment concerning a faculty for the installation of WC facilities, the court considered the reasons given by objectors for declining to become parties opponent.

The six objectors had been given notice under FJR Rule 10.3, inviting them to become parties opponent; and setting out the procedural and potential costs consequences of the decision. Two objectors wrote complaining of the pressure imposed by the potential costs liability.

The court observed that the provisions of the Rules whereby potential parties opponent were warned of the potential costs implications dated from 2000. At that time, a party opponent could require the matter to be considered at a hearing, inevitably increasing costs. It was plainly right that a potential party opponent was informed of the potential liability for costs – which would arise not on the basis of lack of success, but of unreasonable behaviour.

Since the 2019 amendments to the FJR, a party opponent cannot insist on a hearing; and in the present case the court would have been likely to direct a determination of the petition on paper, even if a party opponent had sought a hearing. In those circumstances, there was not much difference between what had happened and what would have happened had any of the objectors become a party opponent. The one procedural difference in such a case appeared to be that a party opponent would have the opportunity to comment on the petitioners’ response to his objection, whereas an objector would not; this may now be the principal reason for wanting to become a party opponent. If an objector chose not to become a party opponent and to rely on the simpler procedure of having his or her objection taken into account, it was not appropriate to describe the inability to comment on the petitioners’ response as grossly unfair. [DW]