32
obligation that the pursuer is seeking to enforce is distinct and separate from the other obligations in the Agreement.
[56] As the pursuer and Dr Lindberg have distinct interests they are not to be viewed as one party for the purposes of the Agreement; and they are free to enforce their own individual interests without the consent or concurrence of the other. Accordingly, as the pursuer has both title and interest to pursue the present action and as it is not necessary for Dr Lindberg to be a party to the present proceedings, the defender's third plea-in-law should be repelled, and the supporting averments in Answers 5 and 12 should not be admitted to probation.
Whether the Agreement gave rise to enforceable obligations
[57] On this matter, the pursuer's position was that the Agreement, entered into by the pursuer and by one of the defender's predecessors in office on or about 13 November 2008, remains in full force and effect and the defender is bound by its terms. The Agreement was not personal to the defender's predecessor in office as it was entered into ex officio. Further, the Agreement is not a ministerial or judicial decision. It is a contract of compromise, which settled contentious litigation extra-judicially. Accordingly, the rules relating to the inability of the defender to bind his successors in office, which only apply to judicial and administrative decisions, are inapplicable.
[58] The Agreement is a contract of compromise between the parties to the petitions, videlicet: the pursuer, Dr Lindberg and the office of Lord Lyon. The defender's predecessor in office did not enter into the Agreement in a personal capacity. Rather he was the respondent to the petitions and a party to the Agreement in his official capacity as
