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The pursuer focused on the fact that there was a reservation of discretion in the foregoing, whereas the defender maintained that this was an inept provision.
[82] The pursuer's complaint is that the Disputed Wording is inconsistent with proviso (i) of paragraph 4 of the Agreement, as, in effect, requiring the Lord Lyon to recognize third party petitioners ("other persons") as "Baron of [the barony]" and which she argues precludes the Lord Lyon from using any wording inconsistent with this.
The character of paragraphs 4 and 5
[83] In my view, these paragraphs were not framed as creating enforceable obligations or, at least, as creating obligations enforceable by the parties to the Agreement. On the latter point, this simply follows from the terms of the paragraphs: paragraph 4 concerns future applications by "other persons" and paragraph 5 concerns a "petitioner who has no connection with Scotland…". The only capacity in which the pursuer instructed her judicial review or in which she advances her claim in these proceedings is as an individual. In her individual capacity, she can have no interest in enforcing these provisions on behalf of other persons. It was not suggested, in my view rightly, that either of these provisions created a jus quaesitum tertio. These paragraphs are not framed as being for the benefit of particular individuals.
[84] More importantly, however, is that having regard to their language and subject-matter, paragraphs 4 and 5 do not in my view have contractual effect. The fundamental point is that, having regard to their subject matter, paragraphs 4 and 5 amount to no more than an expression of intent, or the statement of a practice or policy to be adopted, by the Lord Lyon as to how he proposed in future to respond to applications falling within the
