The judgment of Mrs Justice Hill in the matter of Fuschillo & Ors v Johnson & Johnson & Ors (No. 2) [2026] EWHC 1925 (KB) is an important reminder of the complexities of case managing UK group litigation.
The group action alleges that the claimants contracted malignant mesothelioma or cancer of the female reproductive system (ovarian cancer) due to their exposure to mineral talc-based baby powder carrying the Johnson & Johnson brand. It is their case that the talc used in the powder was contaminated by asbestos and, by its nature, was comprised of particles that were morphologically similar to asbestos such as to give rise to a similar but independent risk of harm. Liability is denied.
Between October 2025 and May 2026, three claim forms were issued on behalf of 2,147 claimants, now managed under a Group Litigation Order (GLO) made on 10 June 2026. Included in the terms of the GLO was that the claimants had to provide a schedule of claimant information and medical records held by the claimants’ solicitors for the first tranche of 350 claimants, provided on 26 June 2026, with the remainder to be provided by 30 October 2026. The claimant information was to include product use information, details of diagnosis, symptom onset, cause of death (if applicable), quantum bracket and whether a medical report had been received or instructed.
On 24 July 2026, Mrs Justice Hill handed down judgment in respect of the defendants’ application to strike out claims of claimants which did not meet the Standard Minimum Requirements of the GLO.
The application was made as it had become clear that 1,052 of the claims could not proceed as they did not meet the Standard Minimum Requirements for admission to the GLO, or were seeking to pursue their claims in Scotland or discontinue for other reasons. Of those, 40% had confirmed instructions to discontinue.
As a result, 818 claimants remained on the Group Register and the claimants’ solicitors stated they had been contacted by approximately 8,922 further potential claimants.
The reason given by the claimants’ solicitors for the large number of proposed discontinuances was a narrowing of the criteria for the claim for damages by those diagnosed with ovarian cancer to high-grade serious ovarian cancer. However, they also made it clear that those claimants still had “meritorious” claims and anticipated bringing fresh claims for damages for their non-high grade serious type ovarian cancer.
The defendants’ application contended that the claimants’ solicitors conduct of the litigation was “procedurally unsatisfactory”. There were delays in the obtaining of medical records and it was unclear how claims could have been issued in October 2025 for claimants for whom the medical diagnosis was unclear. When the GLO application had been advanced in April 2026, no mention was made that large numbers would not be able to join the GLO.
The court’s view was, however, that whilst there had been more than modest adjustments to the claimant cohort, this did not amount to an abuse of process for the purposes of the power to strike out the claims under CPR 3.4(2)(b): “There is no evidence that the Claimants' solicitors have deliberately used the court's process "for a purpose or in a way significantly different from its ordinary or proper use", such as to constitute an abuse: Attorney General v Barker [2000] 1 FLR 759 at [19], per Lord Bingham: they did not, for example, commence claims they had no intention of pursuing; nor have they delayed excessively in addressing those Claimants who have been advised to discontinue. The position is even starker for the Claimants themselves who are, on the evidence currently available, by and large simply following legal advice.”
Furthermore, there were claimants who could not, or did not wish to join the GLO and so could not benefit from the dispensation application and as a result were in breach of CPR 16 by not serving schedules of loss, medical reports and initial disclosure and so technically at risk of strike out under CPR 3.4(2) for failure to comply with a rule or practice direction. However, the court’s view was that it would not have exercised this discretion, on the basis that “strike out is a draconian remedy of last resort. It is not appropriate to exercise it at this stage when there is an acceptable and proportionate alternative course available to the Court. This is the course proposed by the Claimants to the effect that there is to be a closely managed process of the Claimants providing monthly updates and serving notices of discontinuance in the coming months; and any claims which do not meet the SMRs but which have not been discontinued by the time of the next CMC in November 2026 will be revisited at that point, with the Strike Out Application adjourned to that date.”
The court also noted that allowing the defendants’ application would involve a risk that the claimants would have lost their QOCS protection.
The court was of the view that it was not satisfactory to adopt a “wait and see” approach in respect of those claimants which fell outside the GLO but proposed to bring alternative claims. The claimants’ solicitors were ordered to file a witness statement identifying the future intentions in respect of those claimants to assist the court in understanding numbers and timescales and how it was proposed the court would case manage those claims.
In view of the high mortality rate of those claimants diagnosed with mesothelioma and the need for expediency, the court endorsed a staged approach to the litigation:
1. A “Stage 1” trial to determine common issues not requiring the involvement of Lead claimants including “contamination” and “generic causation”. Arguments regarding “knowledge” were not included but likely to be narrowed by the consideration of these preliminary issues.
2. Issues requiring Lead claimant input to be determined at Stage 2 if necessary.
The judgment of Mrs Justice Hill reflects the difficult balancing act faced by courts in case managing complex group litigation, where there is a need to address both the interests of a potentially vulnerable claimant cohort with the necessity to progress large scale and often high value litigation and ensure that the parties are on an equal footing per the overriding objective. However, the judgment affirms that the court’s power to strike out claims under CPR 3.4(2)(b) is a measure of last resort and the court must give consideration to whether other reasonable and proportionate measures are available to address the failures alleged.
Group actions often have the added complexity that the representative is acting on behalf of a large number of individuals with significant volumes of information in issue but that is not a “get out of jail free” card in the event of default. It is clear that the courts require claimants pursuing group litigation claims to manage those claims so that the defendant can understand the case it is expected to meet in a timely manner.
Weightmans’ specialist disease team have been reporting on the litigation faced by Johnson & Johnson since 2024. For further information read here.
A version of this article was first published on 4 Sep 2026
