Janet Fuschillo & Ors v Johnson & Johnson & Ors

In complex group litigation, permission to amend pleadings is governed by the overriding objective and requires a balance between prejudice to the applicant and prejudice to the opposing party and other litigants. Amendments must be properly and clearly formulated. Where an amendment arguably introduces a new claim outside limitation, the court applies the four-stage inquiry under Limitation Act 1980 section 35 and CPR 17.4. A correction or clarification of an existing pleaded factual case is not necessarily a new cause of action. The court should avoid a mini-trial, but should not permit amendments with no real prospect of success. In group litigation, a GLO may be used to manage common issues, supported by proportionate claimant information and lead-case procedures.

Nearly 2,000 claimants brought negligence and deceit claims alleging that talc-based Johnson’s Baby Powder exposed them to asbestos, fibrous or asbestiform talc and heavy metals, causing mesothelioma, ovarian cancer and other conditions. The claimants sought a GLO, dispensation from specified CPR requirements, permission to amend their Generic Particulars of Claim, and directions for a staged trial of common issues.

The court considered amendments concerning iron in talc’s crystalline structure, iron as a standalone contaminant and platy talc. It also determined the proposed GLO issues and terms, including the information to be supplied for individual claims. The staged-approach application was deferred for consideration at a later directions hearing.

1. GLO and dispensations. The court granted the GLO applications and the requested dispensations. The claims raised common or related issues of fact and law, and group management, lead solicitors and lead cases offered proportionate mechanisms for resolving them.
2. Amendments concerning iron. Permission was granted for amendments concerning iron as part of talc’s crystalline structure and iron as a standalone contaminant. The amendments clarified an existing pleaded case. Even if the standalone-contaminant amendments were a new claim, the court held that the CPR 17.4 criteria were met because the new case arose from the same or substantially the same facts already in issue. The proceedings were at an early stage, no Defence or disclosure had occurred, and the amendments caused no identified prejudice.
3. Applicable amendment principles. The discretion under CPR 17.3 was governed by the overriding objective. Amendments had to be properly and clearly formulated. The court should not conduct a mini-trial, but should not permit amendments with no real prospects of success. The pleaded case need not set out every scientific mechanism at this stage where the overarching causation case and intended expert evidence were identified.
4. Platy talc. Permission was refused at this stage. The proposed amendments were not properly carried through the pleading and left material gaps concerning composition, knowledge, breach, causation and loss. The claimants were permitted to return with a fresh application.
5. GLO terms and staged trial. Heavy metals were included in specified GLO issues. The court ordered proportionate information about product use, diagnosis, death and expert reports for case management and lead-case selection. Consideration of a staged trial was deferred to 20 July 2026.

First-instance case-management judgment. No prior appellate decision was stated.