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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 34
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OPINION OF LORD UIST
in the Petition of
MARTIN STEPHEN
JAMES GOLDSTRAW OF WHITECAIRNS
for
Judicial Review of
a decision of the Lord Lyon King of Arms
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Petitioner: Agnew of Lochnaw QC, Miss
Munro; Lindsays WS
Respondent: Woolman QC, Webster;
Solicitor to the Advocate General
22 February 2008
[1] The
petitioner resides at Drummoral House, Isle of Whithorne, Newton Stewart. He
was granted ensigns armorial by Garter and Clarenceux King of Arms in England
by Letters Patent dated 15 December
2000. The matriculation in Scotland
of his ensigns armorial in the name Martin Stephen James Goldstraw
was recorded in the Public Register of All Arms and Bearings in Scotland
in volume 74 on folio 69. At the material time the petitioner was the
heritable proprietor of the superiority of All and whole the Lands and Estate
of Whitecairns in terms of a disposition by Brian Gregory Hamilton in
his favour recorded in the General Register of Sasines for the County
of Aberdeen on 14 May 2003, Fiche 137, frame 38. As a result of the acquisition of that
superiority the petitioner adopted the name Martin Stephen James Goldstraw
of Whitecairns as his proper name, by which he became commonly called and
known. He announced his adoption of that
name in the Edinburgh Gazette of Tuesday
22 July 2003 under Notice Code 2301.
[2] The
petitioner thereafter presented a petition to the Lord Lyon King of Arms
("Lyon") in the name of Martin Stephen James Goldstraw of
Whitecairns narrating that he had
acquired the superiority of All and Whole the lands and Estate of Whitecairns
and that he was "now commonly called and known by the name of Martin Stephen James Goldstraw
of Whitecairns". The Petition prayed that it might
" ... please your
Lordship to Authorise the Lyon Clerk to add a docquet to the entry in the
Public Register of all Arms and Bearings in Scotland
in the name by which the Petitioner is now commonly called and known."
[3] By
letter dated 5 November 2004
Lyon replied inter
alia:
"The legal
position is that your surname is Goldstraw of Whitecairn but that no official
recognition of this has been given by me. There are many examples of cases
where individuals have legally adopted a name but this has not been given
official recognition by the Lord Lyon. I am not willing to make an exception in
your case."
Lyon
therefore recognised that the petitioner's legal surname was Goldstraw of
Whitecairns but at the same time was not willing to grant official recognition
of it.
[4] By
interlocutor of 7 February 2005
Lyon refused to docquet an entry in the Register of all
Arms and Bearings in Scotland
in the name by which the petitioner was commonly called and known. Along with that interlocutor he issued a Note,
the last paragraph of which stated:
"Interpreting
what was meant by the 1672 legislation in contemporary circumstances is not an
exact science. However, it seems to me
that a territorial designation nowadays should imply actual ownership and
occupation of a rural property with a designated name. A superiority title
which gives no right of occupation should not, in my opinion, justify a
territorial designation. Accordingly, I propose to continue the practice of not
recognising a territorial designation where the landholding is purely a
superiority title."
[5] The
petitioner now challenges the decision of Lyon dated 7 February 2005 by way of the
present petition for judicial review. The
first hearing in this case took place along with the first hearing in the
petition of Professor The Much Honoured Stephen Pendaries Kerr of
Ardgowan, Baron of Ardgowan. The same
submissions as were presented in the Kerr Petition were presented, mutatis mutandis, in the present petition.
For the same reasons as I gave in the
case of Kerr, the decision of Lyon in this case dated 7 February 2005 falls to be
reduced. Before pronouncing decree of reduction I shall, as requested, appoint
the case to call By Order on a date to be afterwards fixed for submissions on
whether any order in addition to reduction should be pronounced.
