45
Paragraphs 4 and 5 of the Agreement
[80] The curiosity of the Agreement is that, its first three paragraphs having exhausted the subject-matter of the two judicial reviews, it nonetheless sought in paragraphs 4 and 5 to regulate other matters by "other persons" in future. The paragraphs do not arise from any claim made in the judicial reviews. In submissions the pursuer suggested that her husband was the dominus litus of the two judicial reviews and that the agreement of no expenses due to or by (recorded in paragraph 1) was a quid pro quo for other features of the Agreement (ie possibly paragraphs 4 and 5). As I understood him, the defender did not accept this explanation. In any event, there are simply no averments to this effect and no averments that the pursuer had a wider interest, eg qua partner in the firm, at the time of her judicial review or at the time of the Agreement. (She does have averments anent her interest in the firm, in articles 1 and 9, but essentially these are directed to establishing that the pursuer's claim is above the £100,000 threshold for the privative jurisdiction.) Notwithstanding this, the pursuer made no motion to amend to introduce reference to these matters, nor did she suggest that a proof would be required to determine them.
[81] Paragraph 4 is expressed as an intention on the part of the Lord Lyon to respond in future to petitions by "other persons" owning a dignity of baron (acquired after the appointed day under the 2000 Act) to recognize such a person ("if so required") as "Baron of [the barony]" and to grant ensigns armorial, so long as certain stipulations are met. These are as follows:
- (i) that the Lord Lyon determines that the dignity of baron exists,
- (ii) that the petitioner is a "virtuous and well deserving person; and
- (iii) that the Lord Lyon "determines to exercise his discretion" in their favour.
