Margaret Hamilton Of Rockhall Against Lord Lyon King Of Arms
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2019] CSOH 85 |
| Docket Number | CA63/19 |
| Date | 05 November 2019 |
| Court | Court of Session |
| Published date | 05 November 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 85
CA63/19
OPINION OF LADY WOLFFE
In the cause
MARGARET HAMILTON OF ROCKHALL
Pursuer
against
LORD LYON KING OF ARMS
Defender
Pursuer: Lindsay QC; Lindsays
Defender: Mure QC; The Court of the Lord Lyon
5 November 2019
Introduction
Outline of dispute
[1] The present action concerns the parties’ dispute as to the validity, proper meaning
and effect of heads of agreements (“the Agreement”) entered into in 2008 to settle
extra-judicially prior litigation (in the form of a judicial review) between the parties. The
Agreement was a composite agreement in that it also resolved a separate, second judicial
review (“the Lindberg judicial review”) brought at the same time by another individual,
Dr Lindberg, who is not a party to these proceedings. In October 2017 the defender
indicated an intention to alter his usage (to use a neutral word) in respect of the wording of
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barony titles. The Disputed Wording is set out in paragraph [29]. The effect of the change is
that the holder is no longer expressly recognised as “the baron of [x place]”, or as “holder
of” the barony of [x place]. The pursuer challenges the Disputed Wording as a breach of the
Agreement. While that is the trigger for the dispute, as will be seen, these simple facts have
given rise to a number of subsidiary legal issues. The matter came before the court for a
three-day debate, at which both parties sought to challenge aspects of each other’s
pleadings.
Background
Subsistence of barony titles after the abolition of feudal land tenure
[2] The terms on which the Lord Lyon recognises the holder of a barony title and grants
Letters Patent are at the heart of the dispute between the parties. Lyon Sellar described the
history and nature of estates held in barony with considerable erudition in Sturzenegger,
Petitioner (No 2) 2015 SLT (Lyon Ct) 2 at paragraphs 13-17 (“Sturzenegger”). Upon the
coming into force on 28 November 2004 of the principal provisions of the Abolition of
Feudal Tenure etc (Scotland) Act 2000 (asp 5) (“the 2000 Act"), the feudal system as a form of
landholding was abolished and such estates ceased to exist as feudal estates: see section 63
of the 2000 Act. This ended any connection between ownership of land and the former
feudal barony. However, the “dignity” of baron was unaffected. The term “dignity”
included “any quality or precedence associated with, and any heraldic privilege incidental
to, a dignity”: section 63(4) of the 2000 Act. By virtue of section 62 of the 2000 Act, which
provided that “nothing in this Act shall be taken to supersede or impair the jurisdiction or
prerogative of the Lord Lyon King of Arms”, it remains competent for the Lord Lyon to
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grant new arms to persons who own barony titles. The dignity of a barony title is a form of
incorporeal heritable property.
The business of the firm of which the pursuer is a partner
[3] The pursuer is, together with her husband and her daughter, a partner of a
partnership (“the firm”) which markets and sells barony titles (“barony titles”) to the public.
The firm does not itself grant these titles but facilitates the grants of arms based on barony
titles from the Lord Lyon King of Arms (“Lord Lyon”) by letters patent in favour of their
clients. However, none of the foregoing is the subject of averment by the pursuer. The
pursuer does not sue qua partner of the firm. She sues in this action as an individual, which
was the same capacity in which she entered into the Agreement.
Genesis of the current action: the change of wording to Letters Patent in October 2017
[4] The wording of the Letters Patent which the Lord Lyon grants has varied over time.
In the pursuer’s view, the effect of the change of wording proposed by the Lord Lyon in
October 2017, ie the Disputed Wording, made the barony titles much less marketable or,
more accurately, the value to the firm of the title sold was materially reduced. This is
because the purchaser perceives that the desirability of a barony title resides in the territorial
designation contained in the letters patent, thus: “[Name of purchasers], Baron of X” (where
“X” is a Scottish place name). The market value of a barony title in the former style is said to
be worth about £85,000, whereas the worth of a barony title containing the Disputed
Wording is said be only about £10,000. This is said to have a material impact on the
pursuer’s own title, were she to dispose of it to a third party. The pursuer also asserted in
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Jennifer Troup Against West Lothian Council
...into by parties to extra-judicially settle litigation are binding contracts (Margaret Hamilton of Rockhall v Lord Lyon King of Arms [2019] CSOH 85 per Lady Wolffe at paragraph 60 citing Evenoon Ltd v Jackel & Co Ltd 1982 SLT 83 per Lord Cameron at 88). The compromise agreement which settled......