Professor The Much Honoured Stephen Pendaries Kerr Of Ardgowan, Baron Of Ardgowan For Judicial Review Of A Decision Of The Lord Lyon King Of Arms
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2008] CSOH 36 |
| Court | Court of Session |
| Published date | 22 February 2008 |
| Date | 22 February 2008 |
| Year | 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 36 | |
| OPINION OF LORD UIST in the Petition of PROFESSOR THE MUCH HONOURED STEPHEN PENDARIES KERR OF ARDGOWAN, BARON OF ARDGOWAN for Judicial review of a decision of the Lord Lyon King of Arms ________________ |
Petitioner: Agnew of Lochnaw QC, Miss Munro; Brodies LLP
Respondent: Woolman QC, Webster; Solicitor to the Advocate General
22 February 2008
Introduction
[1] The petitioner is Professor of International Law at the Antioch School of Law and resides at 3153 South Utica, Tulsa, Oklahoma, 74105, USA. He is the heritable proprietor of the Land and Barony of Ardgowan in the County of Renfrew in terms of a Disposition in his favour by Sir Houston Mark Shaw Stewart Baronet dated 17 September 2001 and Land Certificate following thereon. The respondent is the Lord Lyon King of Arms ("Lyon"). By interlocutor dated 25 October 2004, in which the petitioner was designed as "Stephen Pendaries Kerr, Baron of Ardgowan", Lyon confirmed "that he is satisfied that the petitioner is infeft in the Lands and Barony of Ardgowan at 25 October 2004 and that the petitioner is entitled as Baron of Ardgowan to baronial additaments to his Ensigns Armorial, the form of such Ensigns Armorial to be determined by his Lordship at a later date." The purpose of that interlocutor was to confirm that Lyon accepted that the petitioner was infeft in the barony before the appointed day (28 November 2004) for the coming into force of the Abolition of Feudal Tenure etc (Scotland) Act 2000 ("the 2000 Act").
[2] By petition dated 24 May 2004 in the name "The Much Honoured Stephen Kerr of Ardgowan, Baron of Ardgowan" the petitioner petitioned Lyon for rematriculation of his father's arms with baronial additaments in respect of his Barony of Ardgowan. He stated as follows in para 6(a) of that petition:
"That the petitioner has assumed the surname, title, designation and nomen dignitatis of 'KERR OF ARDGOWAN' in place of Kerr, and is now commonly called and known as 'STEPHEN KERR OF ARDGOWAN, Baron of Ardgowan' and desires that the foresaid change of name might be officially entered in the Books of the Court of the Lord Lyon."
As the interlocutor of 25 October 2004 designed the petitioner as "Stephen Pendaries Kerr, Baron of Ardgowan", a solicitor in Brodies WS, the petitioner's solicitors, wrote to Lyon on 19 January 2005 stating inter alia:
"Finally, both my client and his nephew, whom he has designated as the heir to his arms, have already changed their respective names to include the territorial designation 'of Ardgowan' after their surname of 'Kerr'. This situation seems to be on all fours with your 21 July 2003 additional decision in Lashbrooke v Lord Lyon ....... As Professor Kerr and his nephew have already changed their names in similar manner .... my client is hopeful that he and his nephew will be recognised in your warrant with the territorial designation 'of Ardgowan' after their surname."
By letter to the petitioner dated 21 January 2005 Lyon refused to recognise officially the petitioner in that surname. He stated:
"As regards the recognition of a territorial designation, I only recognise this where there is ownership of a significant piece of land, not a superiority. The fact that your client and his nephew have chosen to use a name which bears to include a territorial designation which has not been recognised does not bind Lyon to accept that name. I am not bound by the Lashbrooke decision, since Lyon is not and never has been bound by previous decisions of his nor (sic) of any of his predecessors."
[3] The petitioner now seeks reduction of the decision of Lyon dated 21 January 2005 and an order ordaining Lyon to recognise him officially in the surname "Kerr of Ardgowan" in the Warrant and Letters Patent to follow thereon matriculating in the name of the petitioner his said ensigns armorial with baronial additaments. The grounds upon which Lyon's decision is challenged are as follows:
(a) In granting ensigns armorial and in recognising officially a Petitioner in a surname, whether or not that surname includes a territorial designation, Lyon is acting in his ministerial, and not judicial, capacity. His jurisdiction is to recognise officially surnames that have been adopted and he has no discretion to refuse to recognise officially a name and territorial designation that has been adopted. The purpose of his jurisdiction is to provide official recognition and to link the surname to the coat of arms that is to be granted or matriculated. In refusing to recognise the surname Kerr of Ardgowan, adopted by the petitioner, Lyon has acted unlawfully.
(b) If Lyon has a discretion, he has acted unlawfully by failing to exercise such discretion in a manner compatible with the petitioner's rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The petitioner's right to respect for his private and family life is engaged in relation to his adoption of a name and territorial designation. Lyon is a "public authority" for the purposes of section 6 of the Human Rights Act 1998 and is accordingly obliged to act in a manner compatible with the Convention rights. In refusing to recognise the surname adopted by the petitioner he has interfered with the petitioner's Convention rights. In failing to demonstrate that such interference was in accordance with the law and necessary in a democratic society he has acted unlawfully.
(c) Further and in any event, he has acted unreasonably in refusing to follow the practice of Lyons to recognise officially surnames including a territorial designation whether or not the Barony or other heritable property was a superiority title or a dominium plenum title. While Lyon might not be bound by his previous decisions or those of previous Lyons, he should have good reasons for departing from earlier decisions, which have been consistently followed. There was no such good reason. Lyon gave the petitioner no notice of any change of policy. The petitioner acquired the Barony of Ardgowan, in part, on the faith that he would be entitled to be officially recognised in the name Kerr of Ardgowan and had a legitimate expectation that he would be so recognised.
(d) In any event Lyon erred in considering the petitioner's disposition to be that of solely a superiority. It contains two areas of land, the first conveyed being a superiority and the second conveyed, nominated as the principal messuage of the Barony, being conveyed in dominium plenum. If there is a distinction between the ownership of barony lands in superiority and in dominium plenum, the petitioner is entitled to official recognition in the name Kerr of Ardgowan because he owns the dominium directum of the principal messuage of the barony.
(e) Lyon has given inadequate reasons for his decision. This is particularly so in circumstances where there is a long established practice that such territorial designations are recognised and Lyon has followed this practice himself. In these circumstances Lyon ought to have given adequate reasons for his departure from the established and lawful practice.
[4] In response Lyon contends:
(a) The original jurisdiction of the Court of Session is excluded in all matters placed by statute under the original jurisdiction of Lyon (Royal College of Surgeons of Edinburgh v Royal College of Physicians of Edinburgh 1911 SC 1054). Under the Act 1672 cap 47 Lyon is directed "to visite the whole Armes of Noblemen Barrons and Gentlemen and to matriculate the same in their Registers". The subject matter of the present petition is susceptible to appeal to the Inner House, rather than by way of judicial review.
(b) The petitioner is entitled to call himself by whatever name he chooses. He has, however, no right to require Lyon to enter any particular name in the Public Register of All Arms and Bearings in Scotland. Under the Act 1673 Lyon may matriculate arms for those persons whom he in his sole discretion considers to be 'vertuous and well deserving' (Stair Memorial Encyclopaedia, Courts and Competency, Vol 6, para 1017). It is also a matter for his discretion to determine the designation of any person to whom letters patent should be granted.
(c) Lyon is not bound by his previous decisions. No individual can have a legitimate expectation as to (i) the grant of arms, or (ii) the names entered on the Public Register. In any event, reliance on only two decisions cannot give rise to a legitimate expectation.
(d) The decision of Lyon dated 21 January 2005 is a reasonable one. In seeking the territorial designation sought the petitioner relies upon a territorial nexus in the form of a superiority. Before about 1980 superiorities were not used as a basis upon which persons adopted territorial designations. All superiorities have been abolished under section 2(2) of the 2000 Act. In the circumstances it was reasonable for Lyon to decide not to design the petitioner as 'of Ardgowan'. To docquet an entry in the Public register of All Arms and Bearings in Scotland in the manner sought by the petitioner would give rise to a material risk of misrepresentation that there was a true territorial nexus between the petitioner and the subjects in question.
(e) In exercising his prerogative powers Lyon is under no obligation to give reasons for his decisions in respect of the grant of arms. In any event, he did provide adequate information to the petitioner.
(f) In the event that the court found in favour of the petitioner it should not make an order for specific implement against Lyon, but the matter should be remitted to Lyon to proceed in accordance with the court's decision.
The history of the Lyon Court
[5] In order to be able to understand the competing submissions for the parties it is necessary to know something of the history of the Lyon Court.
[6] A short description of the early history of the...
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...surname “Kerr of Ardgowan”. The action was decided in favour of Professor Kerr by Lord Uist on 22 February 2008: Kerr of Ardgowan, Ptr [2008] CSOH 36. At issue in the case was whether the decisions of the Lord Lyon were susceptible to judicial review, given the right of appeal from the Lyon......