“The Parties agree that the ban on sublease or other disposal of the Object or any parts thereof or rights thereto under the Agreement stipulated in the General Terms and Conditions shall persist unless the Lessee obtains the Lessor’s express written waiver thereof.”
“4.2 The Customer’s Obligations regarding PACCAR Financial’s Ownership’s Interests The Customer undertakes: … d) not to hold itself out as the Owner of the Object or do anything that might jeopardise PACCAR Financial’s interest in the Object and (except to comply with its maintenance obligations) to keep the Object in the Customer’s possession and at all times; e) not to sell, assign, charge, pledge, sub-let, sub-lease or otherwise dispose of the Object or any of its parts or its interest in the Agreement; f) to inform PACCAR Financial immediately if the Object is lost, stolen or damaged or if anyone attempts to claim any interest in the Object – in particular by way of pledge, retention, seizure or attachment - and to take any such action as PACCAR Financial may require in order to protect PACCAR Financial’s interest. In case the Object is lost or stolen, the Customer shall immediately inform any relevant insurers of this and report any theft to the police; g) to keep the Object free from all liens, charges and distraints and pay all taxes, assessments, levies, duties and other charges by the authorities (including any penalties) outgoings and impositions in respect of the Object excepting only any taxes on or assessed by reference to PACCAR Financials’s profits or any value added tax which PACCAR Financial is able to reclaim from the relevant tax authorities. 5. Use of the Object 5.1 Agreed Use PACCAR Financial and the Customer agree that the Agreement is based upon the representations of the Customer set out in the Agreement with respect to use that the Customer will make of the Object. The Customer warrants to PACCAR Financial that the Object will not, without the prior approval of PACCAR Financial, be used differently and shall inform PACCAR Financial immediately when the Object has or will not be used in accordance with the agreed use. Any damage to or loss in value of the Object, caused by a difference use than represented by the Customer, shall be fully compensated by the Customer. 5.2 Customer’s Obligations re Use of the Object Without prejudice to Customer's other obligations set forth in the Agreement, the Customer shall: (i) … (ii) … (iii) Use the Object in accordance with all applicable laws and regulations and with the manufacturer’s operating, maintenance and repair instructions and recommendations (including but not limited to the use of parts, oil, fuel, grease, coolants and factory rate gross weight or loading capacity limitations); (iv) … (v) Not use the Object for any purpose which is illegal, or which might invalidate or otherwise adversely affect any warranties in respect of the Object or which might tend to prejudice PACCAR Financial’s interest in the Object or might lead to any claim or cause any loss to PACCAT Financial (whether directly or indirectly); …”
“17. The Claimant is an independent self-governing business incorporated and operating from the Republic of Poland. There are a number of other independent, self-governing, and free-standing businesses in other jurisdictions, incorporated under the laws of those jurisdictions, The Claimant has no control nor any financial or other interest in those other businesses, notwithstanding that they may be members of the PACCAR Group. Accordingly on this topic the Claimant is only able to speak for PACCAR Financial Polska Sp. Z.o..o.”
“With the lease agreements still in place I can only infer that Paccar would return the vehicle to the operator, Limonka. It is likely that the vehicle would have been restored to the operator on payment of a fee had they pursued their restoration request. However I cannot transfer that penalty to Paccar as they are not the party responsible for the office. Ultimately restoration decisions are guided by HM Revenue and Customs mandatory policy. That policy is designed to encourage legitimate trade and, at the same time, discourage excise offenders by operating a proportionate system of penalties for wrongdoers. Restoring the tractor unit to your client while the lease agreements are still in place would directly conflict with policy as the offence would not have been taken into consideration.”
“… moving on to the wider issues of the leasing of your client’s vehicle I have the following concerns. There have been a number of seizures concerning vehicles leased out by the company Paccar Financial Polska within the last 12 months. I note in particular with this case that the vehicle was initially leased to Truck Care Sp Zoo who in turn subleased to Limonka Marek Chadkowski. The company Limonka subsequently has the vehicle seized from them by Border Force. I note in your claim for restoration on behalf of your client that you outlined a number of steps taken to ensure the legitimacy of haulage operators as clients. My observation from examining these points is that whilst your client allows the subleasing of its vehicles, the checks conducted on the initial haulier carry little weight. Ultimately your client has had a succession of vehicles seized by Border Force that your client had claimed legal title to. The initial vehicles were restored free of charge but there has to come a point when the recognition of a failing in the system is addressed. Policy would indicate that the least action appropriate would be a fee of£5,000 . I am exceptionally willing to restore the vehicle for a 50% reduction of that fee. I feel that this is a balanced, proportionate and graduated response to the seizure by Border Force of your client’s vehicle.”
“I consider the measures PACCAR Finance Polska has in place within their leasing contract and the steps taken to prevent their vehicles being used to carry smuggled goods were adequate, however I also have to consider that whilst your client allows the subleasing of its vehicles, any checks conducted on the initial lessee do not ensure legitimate end use by any party who takes over the sub-lease. I can see from our records that previously vehicles were restored free of charge to your client, but there has to come a point when the recognition of a failing in the system is addressed, and because of this, and although the lease between your client and Dem-Pol Vestoil So. Remains extant, I can now confirm that I vary my original decision not to restore the vehicle, and I now conclude that exceptionally; the Tractor unit should be restored for a fee of£2,500 .”
“I consider the measures Paccar Finance Polska has in place within their leasing contract and the steps taken to prevent their vehicles being used to carry smuggled goods were adequate and therefore reduced the restoration fee accordingly.”
“Ultimately, your client has had a succession of vehicles seized by Border Force that your client had claimed legal title to. The initial vehicles were restored free of charge but there has to come a point when the recognition of a failing in the system has to be addressed. Policy would indicate that the least action appropriate would be a fee of£5,000 . I am exceptionally willing to restore the vehicle for a 50% reduction of that fee. I feel this is a balanced, proportionate and graduated response to the seizure by Border Force of your client’s vehicle.”
“[29] … So the applicant’s right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing, which was best articulated by Laws J in R (Nadarajah) v Secretary of State for the Home Department[2005] EWCA Civ 1363 as follows: “… Where a public authority has issued a promise or adopted a practice which represents how it proposed to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. Wat is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. [68]” [30] Thus in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening)[2011] UKSC 12 [2012] 1 AC 24 … Lord Dyson said simply: “The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute. [35]”
“[17] Where a public authority issues a statement of policy in relation to the exercise of one of its functions, a member of the public to whom it ostensible applies … has a right at common law to require the authority to apply the policy. So long as it is lawful, to himself unless there are good reasons for the authority not to do so …”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“[55] Broadly speaking, the aim of the Commissioners’ policy is the prevention of the evasion of excise duty that is imposed in accordance with European Community law. That is a legitimate aim under Article 1 of the First Protocol to the Convention, the issue is whether the policy is liable to result in the imposition of a penalty in the individual case that is disproportionate having regard to that legitimate aim. More specifically, did it have that effect in the case of Mr Lindsay?”