Judge rejects legal challenge against Lord Lyon’s decision to change wording of barony titles

A baroness who claimed that a decision by the Lord Lyon King of Arms to change the wording of the titles from “the baron of …” to “holder of the barony of …” breached an agreement she entered into with his predecessor in office has had a legal challenge against the decision dismissed.

A judge in the Court of Session ruled that the relevant paragraphs in the agreement were not “contractual” and therefore “not binding” on successors in the office of Lord Lyon, and that the present Lord Lyon’s decision to use a different form of wording did not give rise to an “actionable civil wrong”.

‘Disputed wording’

Lady Wolffe heard that in 2006 the pursuer, Margaret Hamilton of Rockhall, applied to the then Lord Lyon, Lyon Blair, to be recognised officially as the “Baroness of Lag” and to receive a grant of arms with baronial additaments appropriate to the Dignity of Baron in the Baronage of Scotland. 

But Lyon Blair determined to recognise the pursuer only as “Holder of the Barony of Lag” and to grant the pursuer a coat of arms without any baronial additaments.

The pursuer raised judicial review proceedings challenging the 2006 warrant and Lyon Blair’s refusal to recognise her as Baroness of Lag.

At the same time a second judicial review was brought by another individual, Dr Lindberg, and proceeded on broadly the same grounds.

The two claims were settled extra-judicially in 2008, when the parties entered into an agreement with the then Lord Lyon, David Sellar, the result of which was that the 2006 warrant was reduced and the pursuer was recognised as “the Baroness of Lag” with grant of arms with baronial additaments appropriate to the dignity of baron.

However, in 2017 the current Lord Lyon, Dr Joe Morrow CBE QC, indicated an intention to alter the wording of barony titles from “the baron of …” to “holder of the barony of …”, following which the pursuer raised the present action claiming that the disputed wording breached the 2008 agreement.

The pursuer, together with her husband and her daughter, is a partner of a firm which markets and sells barony titles to the public and obtains the grants of barony titles from the Lord Lyon by letters patent in favour of their clients. 

‘Contract of compromise’

The pursuer, who was suing as an individual, claimed that the five-paragraph agreement was a “contract of compromise” which was “binding” on the defender, and that the effect of the wording made the barony titles “much less marketable”.

The market value of a barony title in the former style was said to be worth about £85,000, whereas the worth of a barony title containing the disputed wording was said to be only about £10,000, which had a “material impact” on the pursuer’s own title, were she to dispose of it to a third party. 

The pursuer’s position was that the agreement, entered into by the pursuer and by one of the defender’s predecessors in office in November 2008, remained in full force and effect and the defender was bound by its terms. 

The agreement was not personal to the defender’s predecessor in office, as it was entered into “ex officio”. 

Further, the agreement was a “contract of compromise” that settled contentious litigation extra-judicially, meaning that the rules relating to the inability of the defender to bind his successors in office, which only apply to judicial and administrative decisions, were “inapplicable”.

It was also submitted that the disputed wording introduced by the defender no longer makes any reference in Letters Patent to the Deed of Assignation transferring the barony, which breached the obligations imposed upon the defender by paragraph 4(i) of the agreement.

The effect of the disputed wording, which is to omit the assignation clause, will mean that there is no longer any express statement in the Letters Patent that the Lord Lyon officially recognises the petitioner as baron of the barony in question. 

‘Unenforceable agreement’

The defender’s principal position was that the provisions of the agreement did not create obligations enforceable by the pursuer.

They set out the policy of the then Lord Lyon, and no Lord Lyon was bound to follow a policy of his predecessor, for none could bind his successor. 

In any event, paragraphs 4 and 5 do not contain contractual stipulations intended to be for the benefit of, or enforceable by, either Dr Lindberg or the pursuer, since they related to “other persons”.

The defender argued that the provisions of the agreement on which the pursuer relied were “not valid” and were “unenforceable” against the defender because they “unlawfully fettered the exercise of a prerogative discretion”, and on the pursuer’s averments, were designed to support values in a “secondary market” in baronial dignities.

Dismissing the action, the judge observed that paragraphs 1 to 3 settled the judicial review actions, but ruled that paragraphs 4 and 5 were “not contractual in character”.

In a written opinion, Lady Wolffe said: “The curiosity of the agreement is that, its first three paragraphs having exhausted the subject-matter of the two judicial reviews, it nonetheless sought in paragraphs 4 and 5 to regulate other matters by ‘other persons’ in future. The pursuer’s complaint is that the disputed wording is inconsistent with proviso (i) of paragraph 4 of the agreement, as, in effect, requiring the Lord Lyon to recognise third party petitioners (‘other persons’) as ‘Baron of [the barony]’ and which she argues precludes the Lord Lyon from using any wording inconsistent with this. 

“In my view, these paragraphs were not framed as creating enforceable obligations or, at least, as creating obligations enforceable by the parties to the agreement. The only capacity in which the pursuer instructed her judicial review or in which she advances her claim in these proceedings is as an individual. In her individual capacity, she can have no interest in enforcing these provisions on behalf of other persons. 

“More importantly, however, is that having regard to their language and subject-matter, paragraphs 4 and 5 do not in my view have contractual effect. The fundamental point is that, having regard to their subject matter, paragraphs 4 and 5 amount to no more than an expression of intent, or the statement of a practice or policy to be adopted, by the Lord Lyon as to how he proposed in future to respond to applications falling within the terms of these paragraphs. This is entirely consistent with the ‘wide discretion’, as it was described, he exercised in his ministerial functions.”

She continued: “It respectfully seems to me that the issue of any impermissible fetter of discretion arising in this case is subtly different. This is because of the qualities inherent in and unique to the royal prerogative power available to the Lord Lyon. The very particular character of the royal prerogative power that is exercised by the Lord Lyon as a matter of grace is, in my view, wholly inimical to the articulation of a policy or practice by him that is capable of binding successors in the office of Lord Lyon in the grant of arms. The breadth of the discretion the Lord Lyon has in such matters, which is almost unique in a modern context, arises from the origins and nature of his ancient office and the very particular character of the royal prerogative he exercises on behalf of the Monarch.”

Lady Wolffe concluded: “Returning to the terms of paragraphs 4 and 5 of the agreement, it is clear that the paragraphs do no more than articulate a practice which is proposed to be followed in future. At its highest, these paragraphs were entered into in exercise of a ministerial or administrative function. That reinforces the conclusion, above, that these paragraphs are not contractual in character, even if they had purported to be expressed in terms as for the benefit of, or enforceable by, one of the parties to the agreement (which I have determined they do not) and notwithstanding their inclusion in a document described as an ‘agreement’.

“The consequences of the foregoing are, first, that paragraph 4 of the agreement is not contractual in character and it does not confer any contractual right enforceable by the pursuer in her personal capacity. Conversely, the Lord Lyon’s decision to use a form of wording which is inconsistent with paragraph 4, does not give rise to an actionable civil wrong (in the form of a breach of contract) susceptible to challenge by the pursuer (or, indeed, by any person) in an ordinary or commercial action.”