Page:Margaret Hamilton of Rockhall v Lord Lyon King of Arms.pdf/33

 Lord Lyon. This contract is accordingly binding upon all his successors in office, such as the present incumbent of the office of Lord Lyon, the defender. As a contract of compromise, the Agreement is distinct from ministerial decisions made by the defender when deciding whether or not to grant arms. It is simply an exercise of the contractual powers which vest in the office of the Lord Lyon King of Arms. It is not an exercise of any ministerial power. Nor is it the exercise of any judicial power: see Baron of Ardgowan v Lord Lyon King of Arms 2008 SLT 251; and Kerr.

[59] In addition, the common law rules of precedent, which prevent a single judge from binding another single judge, do not apply to the Agreement as it is not a judicial decision. When acting in a judicial capacity, the defender cannot bind his successors with any judicial precedents. However, the position is different when it comes to entering into a contract. Contracts entered into ex officio by the defender are binding upon his successors in office. For example, a lease entered into by one Lord Lyon would be binding upon his successor until its termination date. The same principles apply to the Agreement.

[60] As a contract of compromise, the Agreement regulates and governs the parties' rights and obligations in respect of its subject matter. It is well established that settlement agreements entered into by parties to extra-judicially settle litigation, such as the Agreement, are binding contracts. Thereafter, the parties' rights and obligations are determined by the terms of the settlement agreement. The reasons why this is the case were explained by the First Division in Evenoon Ltd v Jackel & Co Ltd 1982 SLT 83 per Lord Cameron at 88:

"The defenders reject the pursuers' claim to damages on the ground that any such claim was extinguished by reason of a entered into between the parties in November 1976 … The 'contract of compromise' is apparently a synonym for the form of contract treated by Stair under the name of 'transaction'. The use of the