What is an Interlocutory Application?

20 May, 2024 | Nathan Tetzlaff

Has your lawyer suggested an interlocutory application? Or have you been served with one?

An interlocutory application is an application for orders that are secondary to the main claim, and usually relate to the process/procedure of the case.

Interlocutory applications are dealt with as a preliminary matter before trial and can relate to a wide range of issues. Examples include:

• An application to obtain more relevant documents or to limit the number of documents that must be exchanged if the parties cannot agree.
• An application seeking an extension of time to the timetable before trial.
• An application for an injunction – a court order that compels or prevents another party in the litigation from doing something.
• An application for security for costs, if the plaintiff is an overseas company or there are concerns that they will be unable to pay costs if you are successful in your defence.

Their purpose is often to streamline the case so that the trial will be shorter, or preparation easier, or settlement more easily achieved. Judges can and do limit the scope of interlocutory applications if they consider they are encroaching on matters best left for the trial itself or are being used oppressively.

An interlocutory application can be a very useful way of getting to the heart of the dispute and thereby reduce costs, although care is needed in their use. They can be legally and factually complex, and if they require lengthy preparation then they may increase overall costs rather than reduce them.

While they can be filed with the Court without serving a copy on the other party or parties in the dispute, most interlocutory applications take place with both sides filing submissions and likely making oral argument in front of a Judge, either in a courtroom or sometimes via video link or telephone.

If you are served with an interlocutory application, you will almost certainly be given the right to reply (starting with a notice of opposition) to explain what is disputed and why, and to put any missing facts or documents before the Judge.

Interlocutory applications must be responded to quickly – a notice of opposition to an interlocutory application must be filed within ten working days after that application is served. Critically, any affidavit (sworn statement) must be filed and served with the notice of opposition. Unless the Judge directs otherwise, both sides must file an outline a few days before the hearing (the timing varies between courts).

For this reason, make sure you get in touch with your lawyer urgently if you are personally served with an interlocutory application.