Court orders phased progress while refusing immediate strike-out of non-compliant claims
The High Court has refused an application to immediately strike out hundreds of claims in the Johnson & Johnson baby powder group litigation, instead directing a managed process to reduce the claimant cohort while allowing the litigation to progress towards a preliminary trial.
In Fuschillo and others v Johnson & Johnson and others (No. 2), Mrs Justice Hill gave detailed reasons for a series of case management decisions following a further case management conference on 20 July 2026. The proceedings concern claims brought by individuals, or their estates and dependants, alleging they developed mesothelioma or high-grade serous ovarian cancer following exposure to mineral talc-based Johnson & Johnson Baby Powder.
The litigation currently comprises 1,964 claimants under two claim forms issued in October 2025 and a further 183 claimants added in May 2026. A Group Litigation Order (GLO) was made on 10 June 2026.
A significant issue before the court arose after it became clear that more than half of the original claimants would not qualify for inclusion on the Group Register because they did not satisfy the GLO’s Standard Minimum Requirements, while others intended to discontinue their claims or pursue proceedings in Scotland.
The defendants sought orders progressively striking out those claims. Mrs Justice Hill accepted that the changing claimant cohort represented more than the ordinary adjustments expected in group litigation but concluded that the circumstances did not amount to an abuse of the court’s process under CPR 3.4(2)(b). She found there was no evidence that the claimants’ solicitors had deliberately misused the court process or issued claims they never intended to pursue.
Instead, the court approved a structured process requiring the claimants’ solicitors to provide monthly updates identifying claimants seeking to discontinue and to make staged applications for discontinuance. The strike-out application was adjourned until the next case management conference in November 2026, when any remaining claims falling outside the Standard Minimum Requirements may be reconsidered.
For solicitors involved in complex group litigation, the judgment highlights that strike-out remains a remedy of last resort. Where a practical and proportionate case management alternative exists, the court may prefer close supervision of the proceedings over immediate strike-out, particularly where claimants retain the right to discontinue under CPR 38 and issues concerning Qualified One-Way Costs Shifting may arise.
Mrs Justice Hill also approved a staged approach to the litigation under CPR 3.1. The first-stage trial will determine two preliminary issues: the constitution and alleged contamination of Johnson & Johnson Baby Powder, and generic causation. However, she refused the claimants’ request to include a separate preliminary issue concerning what the defendants knew or ought to have known, finding that such an inquiry would substantially broaden disclosure, lengthen the trial and delay resolution without materially advancing the litigation.
The court directed disclosure, expert evidence and supplemental claimant information to prepare for the Stage 1 trial, which has been provisionally listed between 14 February and 7 April 2028. Mrs Justice Hill also ordered costs budgeting for the litigation, concluding that judicial control over costs was appropriate given the scale and complexity of the proceedings.