One of the key objectives identified by Lord Woolf in his Access to Justice reports was "stopping weak cases from dragging on". The new Civil Procedure Rules (CPR), introduced in 1999, sought to achieve this by a new summary judgment regime allowing defendants to apply to the court to throw out cases with "no real prospect of success".

Following the well-publicised collapse of the Bank of Credit and Commerce International (BCCI) and Equitable Life trials, there was much discussion about whether the courts were taking a sufficiently robust approach to weak cases and whether the CPR - and in particular the new summary judgment regime - gave them sufficient case-management powers. Two recent cases (Sutradhar (FC) v Natural Environment Research Council (2006) and ICI Chemicals & Polymers Ltd v TTE Training Ltd (2007)), along with comments from the Master of the Rolls, suggest that we now may be seeing a more robust approach.

Let's dwell on BCCI and Equitable Life for a moment. Both cases followed a similar pattern: in BCCI, the liquidators' malfeasance claim against the bank was struck out by the High Court and Court of Appeal but reinstated by the House of Lords in a three-to-two decision. The liquidators abandoned their claim nearly two years into the trial, some 12 years after the litigation had commenced. In Equitable Life, the majority of its £2.6 billion negligence claim against auditors Ernst & Young was thrown out at first instance. That decision was reversed by the Court of Appeal, which held that the complex factual issues of causation could only be resolved at trial. It did go to trial, and collapsed four months later.

The outcome of both cases gave rise to widespread concern that the court's procedures were not succeeding in restraining the pursuit of weak but complex and time-consuming cases. A key element of the CPR - ensuring that litigation is cost-effective and conducted expeditiously - was, it said, not being achieved.

The commercial court, a division of the High Court that heard both BCCI and Equitable Life, accordingly organised a symposium in October 2006 to discuss the rules of the court and the lessons that could be learnt from those cases. It resulted in a number of suggestions, including the need for more vigorous exercise of case management powers and for judges to give indications as to the merits of claims prior to trial. The commercial court then appointed a working group to investigate and make proposals for the improvement of its procedures and practice.

At a lecture in March 2007, the Master of the Rolls, Sir Anthony Clarke - the judge who originally struck out BCCI in the High Court - addressed the implications of the two cases. In his view, the present system of pre-action protocols and the CPR itself, with its broad range of case-management powers, was adequate. To the extent there was a problem, it lay with the exercise of those powers. As Sir Anthony put it: "For case management to succeed in future, in all cases and not just latter day successors to BCCI and Equitable Life, those rules will have to be used with a greater eye towards the principles enunciated in the overall objective [of the CPR]."

In practical terms, Sir Anthony advocated a firmer hand from first instance judges. He noted that it was equally important, if not more so, that appeal judges are also firm and support case-management decisions - including strike-out and summary judgment decisions - made by judges at first instance. In his words: "Such decisions should be upheld, unless they are plainly wrong. Appeal judges should hesitate, perhaps more than they do at present, before interfering with a case-management decision."

Two recent cases suggest that these concerns have been taken on board by the courts. In Sutradhar, the first instance judge declined to throw out the claimant's negligence claim, a decision that was overturned in the Court of Appeal and House of Lords. In his judgment, Lord Hoffmann made clear that time and expense are both relevant to whether a case should be allowed to proceed. The scale and cost of a trial meant that the case for stopping the proceedings was "overwhelming".

More recently, in ICI Chemicals, the Court of Appeal overturned the High Court's decision not to grant the defendant's application for summary judgment. That case involved a relatively short point of contractual interpretation and was on a very different scale to BCCI and Equitable Life. Nevertheless, the court's comments were apposite: in appropriate cases where the claimant has no real prospect of success, judges should "grasp the nettle" and decide the point.

Whether the summary judgment appeals in BCCI and Equitable Life would be decided in the same way today we can only speculate, but if the failure of those cases has led to the courts taking a more robust approach in dealing with large-scale litigation, that is to be welcomed. The tools to strike out weak cases - however much is at stake - have been in place for some time. Perhaps now we will see a real willingness to exercise them.

Andrew Howell is a partner and Jack Cundy is an associate in the commercial litigation team at Barlow Lyde & Gilbert

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