11 May 2019

Margaret Hamilton of Rockhall v Lord Lyon King of Arms [2019] CSOH 85

In this Commercial Action, the pursuer sought declarator that under an agreement concluded in 2008 between the pursuer and a former Lord Lyon King of Arms in settlement of previous litigation between them, the current holder of that office was bound to use particular wording in Letters Patent granting arms to persons holding barony titles.  Under section 63 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, estates held in barony ceased to exist as feudal estates, but the “dignity” of baron was unaffected.  Since that Act came into force, successive holders of the office of Lord Lyon King of Arms have developed different practices in relation to the wording of formal Letters Patent by which the Lord Lyon grants arms to those persons presently entitled to the dignity of baron.  The 2008 Heads of Agreement by which the pursuer settled judicial review proceedings against the then Lord Lyon included paragraphs dealing with the exercise of the Lord Lyon’s discretion in future petitions by other persons seeking a grant of arms appropriate to the dignity of baron.  The Commercial Judge, Lady Wolffe, heard argument on various interesting points of law, including the nature of the office of Lord Lyon, the pursuer’s title and interest, and whether an agreement of the type pled by the pursuer would be contra bonos mores.  The Court held that the relevant parts of the Heads of Agreement did not have contractual effect but merely articulated a practice that the then Lord Lyon proposed to follow in future.  Accordingly, those parts of the agreement could not give rise to rights capable of being vindicated by the pursuer against the current holder of the office of Lord Lyon. 

Mark Lindsay Q.C. appeared for the pursuer and James Mure Q.C. appeared for the defender.

5 November 2019