Damien Christopher Tonner

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

Damien Christopher Tonner, a solicitor, was found guilty of professional misconduct for failing to act in the best interests of a client (the Secondary Complainer) in a medical negligence claim and failing to communicate effectively with her. After a summons fell due to a failure to lodge it for calling timeously (a failure that was NOT itself alleged as misconduct), the Respondent failed to advise the client in writing that the cause had fallen, the time bar consequences, her right of action against the firm, the content of Counsel's note, the potential conflict of interest, and that she should take independent advice. He also failed to provide her with the summons and defences. Applying the Sharp test, the Tribunal found this a serious and reprehensible departure, though at the lower end of the scale given his inexperience and reliance on his supervising partner. No dishonesty was found. The Tribunal censured the Respondent and found him liable in expenses. At a later hearing, the Tribunal made no award of compensation to the Secondary Complainer, being unable to attribute her losses/distress to the specific misconduct found.

Duties found breached:

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

Aggravating factors:

• Continuing failure over a lengthy period (from when the case fell until March 2012) to communicate with the client and act in her best interests
• Even when committed to writing in March 2012, the time bar issue was not communicated well
• Failure to inform client of potential conflict of interest and her right of action against the firm despite Counsel's advice to do so

Mitigating factors:

• Respondent's inexperience in medical negligence and Court of Session practice
• Respondent reported the mistake internally, sought help and advice, and 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 (intimated 2014) and its impact on the Respondent
• Respondent has practised since the incident without further conduct issues