Janet Fuschillo & Ors v Johnson & Johnson & Ors (No 2) (Strike Out, Staged Approach and other issues)

In group litigation, a substantial reduction in the claimant cohort, later discontinuance, or failure to meet group-admission requirements does not by itself establish abuse of process. Strike out remains a last resort where a proportionate managed discontinuance process is available. A staged trial is appropriate where selected common issues are likely to make substantial progress or dispose of claims, can be tried through a manageable enquiry, and promote expedition and proportionate use of resources. Contamination and generic causation were selected for Stage 1, but knowledge was excluded because it required a wider, slower and more costly enquiry. Related potential claims require active case-management information, and costs budgeting may be ordered where costs updates alone would not give the court control.

The claimants brought negligence and deceit claims concerning alleged exposure to mineral talc-based Baby Powder, seeking damages for mesothelioma or ovarian cancer. A group litigation order had been made for the claims, for the reasons given in Fuschillo No. 1 [2026] EWHC 1403 (KB).

At a further case management conference, the court considered the defendants’ application to strike out claims that did not satisfy the Standard Minimum Requirements, the claimants’ application for a staged trial, the provision of supplemental claimant information, and costs issues. The central questions were whether the claims should be struck out immediately, which common issues should be tried at Stage 1, and whether costs budgeting was proportionate.

Disposition. The Strike Out Application was adjourned to the November 2026 case management conference. The Staged Approach Application was granted for Contamination and Generic Causation, but refused for Knowledge. Costs budgeting was ordered.

1. Strike out. The marked reduction in the claimant cohort and the need for discontinuances did not establish abuse of process under CPR 3.4(2)(b). Applying the approach in Attorney General v Barker [2000] 1 FLR 759, there was no evidence of deliberate use of the court’s process for a significantly different or improper purpose, or of excessive delay in addressing claims advised to discontinue. Claims outside the group litigation order were technically in breach of CPR 16, so the power under CPR 3.4(2)(c) was available. Strike out was nevertheless a draconian remedy of last resort. A closely managed process of monthly updates and applications to discontinue was an acceptable and proportionate alternative.
2. Discontinuance and related claims. Claimants have a right to discontinue subject to limited exceptions, but permission was required because other claimants remained on the claim forms: Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18. The claimants’ solicitors were also required to provide evidence about potential future claims, including their number, medical conditions, timing and proposed case management, because a wait-and-see approach risked duplicated costs and inconsistent judgments.
3. Staged trial. The court relied on CPR 3.1(2)(j) and (k), PD 19B paragraph 15.1(1), and Municipio de Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951. Contamination and Generic Causation were suitable because they could materially progress or dispose of the claims and involved a relatively confined enquiry. Knowledge was excluded because it required a substantially wider investigation, would add significant time and cost, and offered limited utility before the first two issues were resolved. Those findings would also narrow the later knowledge enquiry.
4. Directions and costs. The court approved directions for disclosure, assumed facts, expert evidence and Supplemental SOCIs. Costs of the amendment application were made costs in the case. Electronic-platform hosting costs were to be shared, with individual access charges borne by the party seeking access. Costs budgeting was proportionate because six-monthly updates would provide transparency without effective control; the experience described in Pan NOx Emissions Litigations [2024] EWHC 1728 (KB) supported that concern.

not stated in the judgment.