The Much Honoured Stephen Pendaries Kerr Of Ardgowan+eur Ing David Ayre Of Kilmarnock, Baron Of Kilmarnock+martin Stephen James Goldstraw Of Whitecairns V. Robin Blair Esq, The Lord Lyon King Of Arms For Judicial Review Of Decision Of The Lord Lyon King Of Arms

15 July 2009

[1] These are three reclaiming motions arising out of decisions by the Lord Ordinary that, contrary to the view of Lord Lyon, all three petitioners, albeit in slightly different circumstances, were entitled to be styled in the records and Registers of Lyon Court as having a territorial designation - this notwithstanding the fact that all three petitioners were at the time, insofar as material, the proprietors of only the feudal superiorities of the lands in question and that these feudal superiorities were about to be abolished through the operation of the Abolition of Feudal Tenure Etc. (Scotland) Act 2000.

[2] The first petitioner had sought to be so styled in the course of a re-matriculation of arms but, although Lyon recognised from his ownership of the feudal superiority the dignitas of "Baron of Ardgowan", he at the same time declined to recognise the petitioner as "Kerr of Ardgowan".

[3] The second petitioner had applied for a new grant of ensigns armorial and in the draft letters patent was, like the first petitioner, accorded the dignitas of "Baron of Kilmarnock" but denied the longer designation of "David Ayre of Kilmarnock, Baron of Kilmarnock".

[4] The third petitioner, having purchased the superiority of the Lands and Estate of Whitecairns, had unsuccessfully applied for a docquet to be added to his entry in the Public Register of All Arms and Bearings for Scotland to show that he was now known as "Goldstraw of Whitecairns".

[5] It can thus be seen that in each of the three petitions the gravamen of the complaint upheld by the Lord Ordinary was the refusal by the Lord Lyon officially to recognise each petitioner in a name or style that incorporated a territorial designation.

[6] The first question debated before us concerned the competency of the three petitions. As to that, there was no dispute that Lyon exercised ministerial or administrative functions quite apart from having a judicial role. It was also agreed that a grant of arms fell into the former category and that recourse could only be had to the Court of Session, by way of reduction, where it was maintained that the grant invaded the rights of a third party - McDonnell v McDonald (1826) 4 S 371. Subject to the separate but overlapping question of justiciability it was accordingly conceded by counsel for the reclaimer that the petition at the instance of the second named petitioner was competent. By way of contrast, however, it was maintained by counsel for the reclaimer that petitions to Lyon Court for matriculation of arms were appealable to this Court and that, the question at issue having arisen as part and parcel of or as ancillary to matriculation, the other two petitions for judicial review were incompetent. We do see the force of that argument, but at the same time see marginally greater force in the argument presented by counsel for the respondents to the effect that the recognition or otherwise of a territorial designation does not touch directly on the form of arms matriculated and that the substantive issue in all three cases was arguably distinct and more akin to an application for "Official recognition" of change of name, which is a recognised procedure before Lyon and which, by agreement of all concerned, was an application involving his ministerial function. In the result, in the very special circumstances of all three petitions, we are prepared to agree with the Lord Ordinary that the reclaimer's pleas to competency in each case fall to be repelled.

[7] On the issue of justiciability, counsel for the reclaimer submitted that the subject matter of all three petitions to Lyon fell within the description of "grant of honours" which was taken by Lord Roskill as an example of non-justiciability in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at p. 418. The Lord Ordinary took the view that Lord Roskill's reference was directed to the conferring of honours as traditionally understood, namely in the Honours List or by the Sovereign in person, and we are inclined to agree with that interpretation. In any event, we question whether the...