EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Carloway Lady Smith Lord Marnoch

[2009] CSIH 61 P1558/05, P1821/05, P1822/05 OPINION OF THE COURT delivered by LORD MARNOCH in Reclaiming Motions at the instance of the Respondent in Petitions by (FIRST) THE MUCH HONOURED STEPHEN PENDARIES KERR OF ARDGOWAN; (SECOND) EUR ING DAVID AYRE OF KILMARNOCK, BARON OF KILMARNOCK; and (THIRD) MARTIN STEPHEN JAMES GOLDSTRAW OF WHITECAIRNS Petitioners; against ROBIN BLAIR ESQ., THE LORD LYON KING OF ARMS Respondent: for Judicial Review of decisions of the Lord Lyon King of Arms _______

Act: Miss Munro (for Petitioners and Respondents); Brodies LLP

Alt: McNeil, Q.C.; Webster (for Respondents and Reclaimers); Office of the Solicitor to the Advocate General for Scotland

15 July 2009

[1] These are three reclaiming motions arising out of decisions by the Lord Ordinary that, contrary to the view of Lord Lyon, all three petitioners, albeit in slightly different circumstances, were entitled to be styled in the records and Registers of Lyon Court as having a territorial designation - this notwithstanding the fact that all three petitioners were at the time, insofar as material, the proprietors of only the feudal superiorities of the lands in question and that these feudal superiorities were about to be abolished through the operation of the Abolition of Feudal Tenure Etc. (Scotland) Act 2000.

[2] The first petitioner had sought to be so styled in the course of a re-matriculation of arms but, although Lyon recognised from his ownership of the feudal superiority the dignitas of "Baron of Ardgowan", he at the same time declined to recognise the petitioner as "Kerr of Ardgowan".

[3] The second petitioner had applied for a new grant of ensigns armorial and in the draft letters patent was, like the first petitioner, accorded the dignitas of "Baron of Kilmarnock" but denied the longer designation of "David Ayre of Kilmarnock, Baron of Kilmarnock".

[4] The third petitioner, having purchased the superiority of the Lands and Estate of Whitecairns, had unsuccessfully applied for a docquet to be added to his entry in the Public Register of All Arms and Bearings for Scotland to show that he was now known as "Goldstraw of Whitecairns".

[5] It can thus be seen that in each of the three petitions the gravamen of the complaint upheld by the Lord Ordinary was the refusal by the Lord Lyon officially to recognise each petitioner in a name or style that incorporated a territorial designation.

[6] The first question debated before us concerned the competency of the three petitions. As to that, there was no dispute that Lyon exercised ministerial or administrative functions quite apart from having a judicial role. It was also agreed that a grant of arms fell into the former category and that recourse could only be had to the Court of Session, by way of reduction, where it was maintained that the grant invaded the rights of a third party - McDonnell v McDonald (1826) 4 S 371. Subject to the separate but overlapping question of justiciability it was accordingly conceded by counsel for the reclaimer that the petition at the instance of the second named petitioner was competent. By way of contrast, however, it was maintained by counsel for the reclaimer that petitions to Lyon Court for matriculation of arms were appealable to this Court and that, the question at issue having arisen as part and parcel of or as ancillary to matriculation, the other two petitions for judicial review were incompetent. We do see the force of that argument, but at the same time see marginally greater force in the argument presented by counsel for the respondents to the effect that the recognition or otherwise of a territorial designation does not touch directly on the form of arms matriculated and that the substantive issue in all three cases was arguably distinct and more akin to an application for "Official recognition" of change of name, which is a recognised procedure before Lyon and which, by agreement of all concerned, was an application involving his ministerial function. In the result, in the very special circumstances of all three petitions, we are prepared to agree with the Lord Ordinary that the reclaimer's pleas to competency in each case fall to be repelled.

[7] On the issue of justiciability, counsel for the reclaimer submitted that the subject matter of all three petitions to Lyon fell within the description of "grant of honours" which was taken by Lord Roskill as an example of non-justiciability in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at p. 418. The Lord Ordinary took the view that Lord Roskill's reference was directed to the conferring of honours as traditionally understood, namely in the Honours List or by the Sovereign in person, and we are inclined to agree with that interpretation. In any event, we question whether the "achievement" of arms on payment of a fee can truly be viewed as the conferment of any "honour". While parties were agreed that under the Lyon King of Arms Act 1672, cap 47, Lyon, in his ministerial function of granting arms, was enjoined to make such grants only to "vertuous and well deserving Persones", it does not seem to us that that description is sufficiently distinctive to infer "honour", at least in the present context. Accordingly, in our opinion, while Lyon may be seized of a very wide discretion in making an assessment as to who qualifies as "vertuous and well deserving" under the 1672 Act, it is difficult to see why his decisions should be wholly exempt from challenge under the supervisory jurisdiction. This was also the conclusion reached by the Lord Ordinary. One form of the substantive argument advanced to us on behalf of Lyon was that the name or designation under which a person seeks a grant or matriculation of arms may be highly relevant to the assessment of his or her entitlement and we are accordingly of the opinion that the particular issue raised in all three petitions is, indeed, justiciable.

[8] The next, and most substantive, issue concerns the basis of Lyon's decision in the three applications made to him. It can be stated quite briefly, namely that for it to be appropriate to include a territorial designation in his records and Registers, there should be a substantial "nexus" or connection, past or present, between the applicant or his predecessors and the lands in question. This, however, was not the position where the ownership consisted of a recent acquisition of the bare superiority or dominium directum of the lands and, indeed, a territorial designation in such circumstances could prove highly misleading. As counsel for Lyon pointed out such a designation might, for instance, conflict with the right of the owner of the dominium utile of the lands so to describe himself. We confess that, for our part, we found such reasoning on the face of it persuasive, not least because of its foundation in plain common sense, and it was accordingly with some interest that we awaited the response of counsel for the petitioners and respondents. When it came, it reflected, not unnaturally, the reasoning of the Lord Ordinary, which was to the effect that in Scotland, at common law, a citizen was in general entitled to take any name he pleased and that accordingly Lyon had, in effect, little or no discretion as to whether or not to record that name in the records and Registers of Lyon Court. Any discretion he had was limited to the disallowance of "capricious" names such as "Screaming Lord Sutch" but this exception did not cover the change of a surname from, for example, Brown to Smith. Indeed, counsel for the petitioners and respondents went the length of submitting that Lyon had no discretion to decline Official recognition of a purported "territorial designation" where the name of the lands was no more nor less than an invention.

[9] With all due respect to the Lord Ordinary and the submissions of counsel for the respondents, we consider the approach just summarised to be seriously flawed. We were informed by counsel for the reclaimer that Lyon, himself, accepted that citizens could in general call themselves by any name they pleased, including the use of territorial designations, (albeit Lyon retains express jurisdiction under the Act of 2000 to prevent subscription by inappropriate territorial references). It is, however, an entirely different matter when it comes to the Official recognition by him of names of armigerous persons. We accept the submission that the name and designation of such persons is of the highest importance in avoiding confusion in the Public Register of All Arms and Bearings and they may also affect the working out of the destination of the arms granted or matriculated. Genealogy is at the heart of both Lyon's judicial and ministerial functions, as also of the records and Registers kept by him, and family names, designations and relationships are the very stuff of genealogy. All this, in our opinion, is implicit in the highly authoritive writings of Lord Lyon (Innes of Learney) which were before the Lord Ordinary and to which we, in turn, were referred in the course of the hearing. In an Article in Green's Encyclopedia of the Laws of Scotland (1930) entitled "Name and Change of Name" at para 305 the learned author accepted that even at common law a change of name must be made with "... good faith, and the absence of any improper object," and he later points out (at paras 307 and 308) that "Official recognition of change of name" by Lyon is in fact a substitute for recognition by "Royal License" which, while it does not confer the new name does constitute a "permission" to use it. As importantly, perhaps, in the 2^nd edition of Scots Heraldry at p.198, the learned author says this:-

"The name in which a person is granted arms is, however, a 'name of dignity' (i.e. of the 'dignity' of Gentleman) and in the nature of a 'title' if it comprehends a feudal designation."

[10] It is, we think, inconceivable that the learned author should have thought that the choice of such name, dignity or title was a matter solely for the applicant, and for these and the other reasons given above we are left in no doubt that Lyon does indeed enjoy a wide discretion in deciding whether or not to accept a change of name for entry in the Public Register in question.

[11] There remain only two other issues for our consideration. First, it was argued in the court below, and before us, that Lyon's decisions in these three applications constituted a disproportionate and unlawful interference with the petitioners' rights to live under names of their choosing and thus determine their own identities which had been recognised by European jurisprudence as aspects of the right to respect for family life under Article 8 of ECHR. In our opinion, however, this argument is wholly misconceived. As stated above, these petitioners can call themselves by any name they choose. When, however, they seek a grant or matriculation of arms they have recourse to a discrete area of the law which, of its nature, depends on its own particularities. We might add that, even if Article 8 of the Convention were in some way engaged, it is clear that in the matter of name recognition a wide margin of appreciation is enjoyed by Contracting States - Stjerna v Finland [1997] 24 E.H.H.R para. 39. On no view, in our opinion, could that power of appreciation be said to have been exceeded in the decisions in question.

[12] Second, and lastly, it was submitted that the petitioners had a "legitimate expectation" that their various applications would be granted by Lyon. This submission was also upheld by the Lord Ordinary who found that such an expectation could be derived from "a regular practice by two different Lyons to recognise a territorial designation on the basis of ownership of a bare superiority alone". As to this finding, it is not entirely clear what material was brought to the attention of the Lord Ordinary or how the competing submissions of parties were focussed. With the benefit of the material brought to our attention and the submissions made to us, however, we are clear that the finding simply cannot be supported.

[13] In the first place, it must be remembered that the decisions of Lyon are reached in individual cases and are not binding on either him or his successors so far as future applications are concerned.

[14] In the second place, prior to 1994 there is no known instance where Lyon recognised a territorial designation as being properly taken from the ownership of the dominium directum of lands. In that year Lord Lyon (Innes of Edingight) did for the first time confer such recognition in the case of three petitioners, Cowan & others, wherein his reasoning is recorded in 1996 SLT (Lyon Ct) 2. As can be seen, Lord Lyon (Innes of Edingight) did not find the question at issue to be an easy one in that the answer depended, as he saw it, on a construction of the Lyon King of Arms Act 1672, as to which there was a complete absence of contemporary guidance. In the result he took guidance from the terminology of conveyancing statutes passed more than two hundred years later which, perhaps, he, himself, recognised was far from conclusive. We say that because it appears from a Schedule lodged in process that, in later years, while he followed his decision in Cowan & others on two occasions, he took a quite opposite view, and denied recognition, in three other applications which, on the face of them, appear indistinguishable.

[15] In the third place, the only other decision of Lyon which is founded on in this connection is the decision in July 2003 of Lord Lyon (Blair) in Lashbrooke Petitioner, wherein the relevant correspondence and reasoning are to be found recorded in 2004 SLT (Lyon Ct) at p. 9. It can be seen from a perusal of that material, first, that Lyon Blair doubted the reasoning of his predecessor in Cowan & others, Petitioners, and, second, that he continued throughout to be of the view that there should be some substantial nexus between the applicant and the lands in question, at least to the extent that "lands to support a territorial designation would have to be of a reasonable size." That said, counsel for the petitioners and respondents was undoubtedly well-founded in treating that decision as being also, in terms, a recognition of a territorial designation derived from ownership of the dominium directum.

[16] That, however, is not an end of the story because, in the Schedule already mentioned, we find that Lord Lyon (Blair) had previously declined to recognise three identically based claims and subsequently, in the course of 2004, declined to recognise a further four. Some, at least, of these later decisions would have been made known to the first and third petitioners had proper inquiry been made of Lyon Office prior to the dates of decision in their own cases (21 January 2005 and 5 November 2004 respectively) and all the refusals prior in date to Lashbrooke would likewise have been made known to all three petitioners. Whatever may or may not be said about these apparently contradictory decisions - and there may, of course, have been individual considerations we know not of - it is, in our opinion, impossible to conclude from them that there was any regular practice on the part of Lyon such as could give rise to the "legitimate expectation" contended for. Even less could it be inferred that Lyon had adopted any clear and unequivocal policy on this matter. In these circumstances we find it unnecessary to consider the further limitations on the application of the doctrine which were prayed in aid by counsel for the reclaimer under reference to R v North and East Devon HA, Ex parte Coughlan [2001] QB 213 at paras 55-59 and Rowland v Environment Agency [2003] Ch 581 at para. 688.

[17] On the whole matter we shall recall the interlocutors of the Lord Ordinary, repel the first plea-in-law stated for the respondent in each petition (competency) but sustain in each case his third, fourth, fifth and sixth pleas-in-law (as reflecting success on the merits), repel all competing pleas-in-law tabled by the petitioners and refuse all three petitions in their entirety.