19
Submissions on behalf of the defender
The approach to construction of the Agreement
[33] Mr Mure QC, who appeared for the defender, noted that the background to the Agreement was largely a matter of admission between parties. In so far as the Agreement was contractual, it fell to be interpreted according to modern principles of construction, as in the case of any other agreement. Extrinsic evidence of the factual matrix may therefore be used to identify the purpose of the Agreement and the dispute that the parties thereto were seeking to settle by it. In the present case, therefore, the petition in the Hamilton judicial review, along with her prior petition and warrant were relevant. Mr Mure noted that the summons was clear that the dispute concerned the wording of the 2006 Warrant issued on 15 May 2006 by Lyon Blair in respect of the pursuer's personal petition. The orders sought by the pursuer in the Hamilton judicial review concerned the pursuer alone (see paragraph [8], above). In none of the earlier proceedings did the pursuer claim qua partner in any firm or partnership.
[34] Turning to the issue of who were the parties to the Agreement, Mr Mure noted that the Crown has the capacity to contract. In Scotland, it has always been possible to sue the Crown on the basis of a contractual liability. In so far as the Agreement is held to be contractual, it is a contract entered into by the Crown acting through the agency of the Lord Lyon as an Officer of State: see Wade & Forsyth: Administrative Law (11th Ed, 2014) at pages 698–701 and Town Investments Ltd v Department of the Environment [1978] AC 359 at 381D-E, 400 & 402C-D. Developed to its logical conclusion, albeit on a hypothesis that the defender did not accept (that the Agreement created enforceable obligations), Mr Mure's final position was that Lyon Sellar had entered into the Agreement on behalf the Monarch. If that
