49
The breadth of the discretion the Lord Lyon has in such matters, which is almost unique in a modern context, arises from the origins and nature of his ancient office and the very particular character of the royal prerogative he exercises on behalf of the Monarch.
[88] Returning to the terms of paragraphs 4 and 5 of the Agreement, it is clear that the paragraphs do no more than articulate a practice which is proposed to be followed in future. At its highest, these paragraphs were entered into in exercise of a ministerial or administrative function. That reinforces the conclusion, above, that these paragraphs are not contractual in character, even if they had purported to be expressed in terms as for the benefit of, or enforceable by, one of the parties to the Agreement (which I have determined they do not) and notwithstanding their inclusion in a document described as an "agreement".
[89] In relation to the issue of the indivisibility, the defender argues (under reference to the observation of Lord Boyd in Grange Trust Trustees, cit supra, at paras 15 to 16) that the obligations embodied in the Agreement are indivisible and hence Dr Lindberg also required to be a party to these proceedings. My finding that paragraphs 4 and 5 do not have contractual effect renders this argument redundant. However, even if I had found (i) that these paragraphs were contractual in nature and (ii) that they were enforceable by the parties to the Agreement, it remains the case that these two paragraphs are clearly of a different character from the first three paragraphs, by reason of their subject matter; and they are enforceable by different parties. The first three paragraphs arise from, and are directed to resolving, the judicial reviews. Paragraphs 4 and 5 bear to relate to persons other than the parties to the Agreement and to be prospective in intent. Applying Lord Boyd's formulation of the question in paragraph 16 of Grange Trust Trustees (quoted above, at
