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were correct, then the action would require to be directed against the Monarch and, as the subject matter concerned a reserved matter, the Advocate General for Scotland was the appropriate defender. (This point emerged only in submissions at the debate.)
[35] Mr Mure noted that a Crown servant acting in his official capacity is not liable to actions for breach of warranty of authority: Dunn v Macdonald [1897] 1 QB 555 at 556–558. While the Crown may bind itself by a commercial contract, such as a lease, like any other public authority it cannot fetter the exercise of its discretion in the future as it sees fit: Ayr Harbour Trustees v Oswald (1883) 10 R (HL) 85 at 87 ("Ayr") and York Corporation v Henry Leetham and Sons Ltd [1924] 1 Ch 557 at 569–570 ("York Corporation").
The meaning of the particular paragraphs
[36] Turning to consider the individual paragraphs of the Agreement, Mr Mure noted that paragraph 1 recorded parties' agreement that the decisions by Lyon Blair in the prior petitions will be quashed. The reservation of the "competency issue" was a reference to the issue later decided by an Extra Division of the Inner House in Kerr, namely whether petitions for judicial review were competent in relation to particular decisions of the Lord Lyon. As a compromise agreement, the reference to expenses did not indicate that the pursuer had a right to expenses. Indeed, the pursuer abandoned her original petition to the Lyon Court and raised a fresh petition.
[37] Paragraphs 2 and 3 dealt with future action in relation to the two petitioners, Dr Lindberg and Mrs Hamilton. Paragraphs 1 to 3 were acted upon and he submitted that those provisions were now spent.
