Damien Christopher Tonner

Findings — machine-extracted (anthropic-batch:claude-opus-4-8); verify against the decision

Damien Christopher Tonner, a then-inexperienced associate at Brodies, was delegated a medical negligence case where the summons failed to be lodged for calling, causing the cause to fall. The misconduct found was not the failure to lodge but his failure to act in the Secondary Complainer's best interests and to communicate with her in writing about the case falling, the timebar consequences, the potential conflict of interest, her right of action against the firm, Counsel's view, and the defences. The Tribunal found professional misconduct under the Sharp test, breaching Rules 3 and 9 (2008) and B1.4 and B1.9 (2011). No dishonesty was found. Given the lower-end severity, his inexperience, his reporting of the error, and the long delay, the Tribunal imposed a censure (no fine), found him liable for taxed expenses, and ordered publicity.

Duties found breached:

• Act in the client's best interests
• No improper communication with the court

Aggravating factors:

• Continuing failure over a lengthy period to communicate properly with the client and act in her best interests
• Failure to follow Counsel's advice that the Secondary Complainer be informed and that the Law Society be consulted
• Client was prejudiced and not kept informed of major developments affecting her case

Mitigating factors:

• Respondent's inexperience in medical negligence and Court of Session practice
• He reported the mistake within the firm and sought advice from senior colleagues
• He followed the instructions of his supervising partner
• No prior conduct findings on record
• Positive reference from current supervising partner
• Very long delay in bringing the case to conclusion (since 2014) and its impact on the Respondent
• Misconduct assessed at the lower end of the scale