Goldstraw of Whitecairns, Re Judicial Review [2008] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2008] CSOH 34

OPINION OF LORD UIST

in the Petition of

MARTIN STEPHEN JAMES GOLDSTRAW OF WHITECAIRNS

for

Judicial Review of a decision of the Lord Lyon King of Arms

________________

Petitioner: Agnew of Lochnaw QC, Miss Munro; Lindsays WS

Respondent: Woolman QC, Webster; Solicitor to the Advocate General

22 February 2008

[1] The petitioner resides at Drummoral House, Isle of Whithorne, Newton Stewart. He was granted ensigns armorial by Garter and Clarenceux King of Arms in England by Letters Patent dated 15 December 2000. The matriculation in Scotland of his ensigns armorial in the name Martin Stephen James Goldstraw was recorded in the Public Register of All Arms and Bearings in Scotland in volume 74 on folio 69. At the material time the petitioner was the heritable proprietor of the superiority of All and whole the Lands and Estate of Whitecairns in terms of a disposition by Brian Gregory Hamilton in his favour recorded in the General Register of Sasines for the County of Aberdeen on 14 May 2003, Fiche 137, frame 38. As a result of the acquisition of that superiority the petitioner adopted the name Martin Stephen James Goldstraw of Whitecairns as his proper name, by which he became commonly called and known. He announced his adoption of that name in the Edinburgh Gazette of Tuesday 22 July 2003 under Notice Code 2301.

[2] The petitioner thereafter presented a petition to the Lord Lyon King of Arms ("Lyon") in the name of Martin Stephen James Goldstraw of Whitecairns narrating that he had acquired the superiority of All and Whole the lands and Estate of Whitecairns and that he was "now commonly called and known by the name of Martin Stephen James Goldstraw of Whitecairns". The Petition prayed that it might

" ... please your Lordship to Authorise the Lyon Clerk to add a docquet to the entry in the Public Register of all Arms and Bearings in Scotland in the name by which the Petitioner is now commonly called and known."

[3] By letter dated 5 November 2004 Lyon replied inter alia:

"The legal position is that your surname is Goldstraw of Whitecairn but that no official recognition of this has been given by me. There are many examples of cases where individuals have legally adopted a name but this has not been given official recognition by the Lord Lyon. I am not willing to make an exception in your case."

Lyon therefore recognised that the petitioner's legal surname was Goldstraw of Whitecairns but at the same time was not willing to grant official recognition of it.

[4] By interlocutor of 7 February 2005 Lyon refused to docquet an entry in the Register of all Arms and Bearings in Scotland in the name by which the petitioner was commonly called and known. Along with that interlocutor he issued a Note, the last paragraph of which stated:

"Interpreting what was meant by the 1672 legislation in contemporary circumstances is not an exact science. However, it seems to me that a territorial designation nowadays should imply actual ownership and occupation of a rural property with a designated name. A superiority title which gives no right of occupation should not, in my opinion, justify a territorial designation. Accordingly, I propose to continue the practice of not recognising a territorial designation where the landholding is purely a superiority title."

[5] The petitioner now challenges the decision of Lyon dated 7 February 2005 by way of the present petition for judicial review. The first hearing in this case took place along with the first hearing in the petition of Professor The Much Honoured Stephen Pendaries Kerr of Ardgowan, Baron of Ardgowan. The same submissions as were presented in the Kerr Petition were presented, mutatis mutandis, in the present petition. For the same reasons as I gave in the case of Kerr, the decision of Lyon in this case dated 7 February 2005 falls to be reduced. Before pronouncing decree of reduction I shall, as requested, appoint the case to call By Order on a date to be afterwards fixed for submissions on whether any order in addition to reduction should be pronounced.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Goldstraw of Whitecairns, Re Judicial Review [2008] ScotCS CSOH_34 (22 February 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_34.html Cite as: [2008] CSOH 34, [2008] ScotCS CSOH_34

Scottish Court of Session Decisions