What interlocutory means
Interlocutory describes anything that happens between the start of a case and its final determination.
A final judgment decides the whole dispute. An interlocutory decision decides something along the way: whether an injunction should hold the position, whether a party can amend, whether a document must be produced, whether the court has jurisdiction, whether a party has standing.
The distinction matters for appeals. Whether a decision is final or interlocutory affects whether it can be appealed as of right or only with leave, and the time limits differ, so characterising a decision correctly is a practical necessity rather than a technicality.
The most commonly encountered interlocutory application is the injunction: an order restraining a party from doing something until the case is decided. It holds the position so that the judgment, when it comes, still means something.
How it is used
An interlocutory injunction is granted on established principles rather than on the merits of the case.
The applicant must show a serious question to be tried, meaning the claim is not frivolous. The court does not decide who is right.
Damages must be an inadequate remedy. If money would put the applicant right, an injunction is not needed.
The balance of convenience must favour granting it, weighing the harm to each side from granting or refusing.
And the applicant gives an undertaking as to damages, promising to compensate the respondent if the injunction turns out to have been wrongly granted.
Other common interlocutory applications include preliminary objections challenging jurisdiction or standing, applications to amend pleadings, applications for extension of time, applications to join a party, and applications for discovery of documents.
Each is decided, each takes a hearing, and each can be the subject of a further application or an appeal.
Key features
- Anything decided during a case rather than at its conclusion
- Includes injunctions, objections, amendments and discovery applications
- An interlocutory injunction requires a serious question, inadequate damages and balance of convenience
- The applicant gives an undertaking as to damages
- Whether a decision is final or interlocutory affects the right of appeal
- Interlocutory applications carry their own costs orders
How this works in Nigeria
Interlocutory proceedings are the principal reason Nigerian civil litigation takes as long as it does, and it is worth understanding the mechanics.
A defendant with a weak case can file a preliminary objection challenging jurisdiction. That objection is argued and decided. The decision is then appealed. The appeal is heard. Meanwhile the substantive case has not begun.
Appellate courts have criticised the practice repeatedly, and rules have been adjusted to discourage it, but the incentive remains: delay favours a defendant who owes money.
For a claimant, the practical responses are to draft the originating process so that the obvious objections are answered on its face, to address jurisdiction, standing and cause of action expressly, and to resist objections promptly rather than seeking adjournments.
For the interlocutory injunction specifically, Nigerian practice frequently pairs an ex parte order, lasting a short defined period, with a motion on notice returnable immediately, so the interlocutory application is heard with both sides present shortly afterwards.
Costs orders on interlocutory applications are also worth asking for. A party bringing unmeritorious applications can be ordered to pay, and while Nigerian costs are modest, an application for costs signals to the court that the delay is being noticed.
Interlocutory vs final vs ex parte
Three descriptions of court decisions that are often confused.
A final decision determines the rights of the parties in the case. It ends the matter at that level, and it can generally be appealed as of right.
An interlocutory decision resolves something along the way without determining the substantive rights. Appeal may require leave, and the time limits differ.
Ex parte describes how an application was heard rather than what it decided: with only one party present. An ex parte order is necessarily interim and short, and it is followed by an inter partes hearing.
So an ex parte injunction lasting seven days, followed by an interlocutory injunction until trial, followed by a final judgment, is three different orders at three different stages, and confusing them produces appeals filed in the wrong form and out of time.
Limits and risks
Interlocutory applications consume time and cost, and in Nigerian practice they are frequently used tactically rather than substantively.
An interlocutory injunction also decides nothing about the merits. A party who obtains one has held the position, not won.
The undertaking as to damages is a real exposure, and an applicant who obtains an injunction and loses at trial can be required to compensate for the disruption.
And appeals from interlocutory decisions can stall a case entirely, which is precisely why they are used that way.
Worth knowing
Draft the originating process so that the standard preliminary objections are answered on its face. Nigerian cases lose a year to jurisdiction and standing objections that two well drafted paragraphs in the statement of claim would have made unarguable.
Questions people ask
What does interlocutory mean?
Anything decided during a case rather than at its conclusion. Interlocutory applications include injunctions, preliminary objections, amendments, joinder and discovery, and they decide how the case proceeds.
What is the test for an interlocutory injunction?
A serious question to be tried, that damages would be an inadequate remedy, and that the balance of convenience favours granting it. The applicant also gives an undertaking as to damages.
Can I appeal an interlocutory decision?
Sometimes as of right and sometimes only with leave, depending on the nature of the decision. Characterising a decision as final or interlocutory correctly matters, because the routes and time limits differ.
Why do Nigerian cases take so long?
Interlocutory proceedings are a principal reason. A preliminary objection can be argued, decided and appealed before the substantive case begins, and delay favours a defendant who owes money.
How can a claimant reduce the delay?
Draft the originating process so that jurisdiction, standing and cause of action are addressed on its face, resist objections promptly rather than adjourning, and ask for costs on unmeritorious applications.
Does winning an interlocutory injunction mean I have won?
No. It holds the position until trial and decides nothing about the merits. If you lose at trial, the undertaking as to damages can require you to compensate the other side.