Page:Margaret Hamilton of Rockhall v Lord Lyon King of Arms.pdf/51

 recognise the very particular nature of the royal prerogative being exercised here. As I have already noted, in respect of the grant of arms (as distinct from adjudicating among competing claimants to an extant title), it is hard to identify in modern times an exercise of prerogative power enjoying a greater degree of discretion than that vested in the Lord Lyon. In these circumstances, it is unlikely that the Lord Lyon could competently articulate or agree that a practice or policy would be immutable or to subsist in perpetuity (which is in substance what the pursuer argues). In any event, properly construed, this is not what paragraphs 4 or 5 purported to do. Subject potentially to issues of legitimate expectations (viewed from the perspective of a potential applicant) or vires or jurisdictional issues, the Lord Lyon is in my view free to alter his practices or policies in respect of the form, wording and grant of arms as he sees fit in the exercise of his wide discretion.

Conclusion on paragraphs 4 and 5 of the Agreement

[92] The consequences of the foregoing are, first, that paragraph 4 of the Agreement is not contractual in character and it does not confer any contractual right enforceable by the pursuer in her personal capacity. Conversely, the Lord Lyon's decision to use a form of wording (such as the Disputed Wording) which is inconsistent with paragraph 4, does not give rise to an actionable civil wrong (in the form of a breach of contract) susceptible to challenge by the pursuer (or, indeed, by any person) in an ordinary or commercial action. (In point of fact, the Lord Lyon has departed in other ways from the terms of paragraph 4, but this prompted no challenge at the time. While reference was made to these matters in submissions, absent a plea of personal bar or waiver, in my view these are no more than jury points.) Secondly, a fortiori paragraph 4 does not have the quality of a compromise which is