Page:Margaret Hamilton of Rockhall v Lord Lyon King of Arms.pdf/43

 the Agreement, or at least paragraph 4, having contractual effect and being binding on the defender as the successor in office to Lyon Sellar. I therefore propose first to address the meaning and effect of the Agreement, before considering the other issues arising, insofar as it is necessary to do so.

The meaning and effect of the Agreement

The context giving rise to the Agreement

[76] The undisputed background was that the Agreement was entered into to settle the two judicial reviews by an extrajudicial settlement among the parties to those proceedings. Prima facie therefore it is a contract of compromise. One feature of a contract of compromise is that the obligations it creates supersede the rights or claims which were the subject of the litigation and it constitutes a contract binding on the parties to it. That aspect of a compromise agreement was not disputed as a generality. However, the pursuer argues that, as an extrajudicial compromise, the Agreement cannot thereafter be terminated by one party. In the alternative, the pursuer argues the Agreement cannot be terminated without a material change of circumstances (and she asserted that there were none) and, further, if the Agreement is terminable, insufficient notice has been given. I address the termination issue, below.

[77] Having regard to this context and to the language used in the Agreement, I find that some parts of it did create certain legal effects, in the sense that if a party proposed to advance a claim inconsistent with the compromise, its terms could be founded on to preclude that claim. So for instance, if one party sought expenses in respect of the judicial