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His Honour Judge Pelling QC (sitting as a High Court judge) held that the right of a company to appeal against a tax liability did not constitute ‘property' within the meaning of s 436 of the Insolvency Act 1986 and so it was not capable of being assigned to the former directors of the company. Accordingly, the decision whether (and if so how long) to pursue a tax appeal was one for the liquidator alone. He was entitled to fund an appeal from sums advanced for that purpose by the former directors, but only if and to the extent that he judged that to be in the best interests of creditors generally. Further, even if the right to appeal was capable of assignment, in the absence of the agreement of the liquidator the court would not have sanctioned an assignment. The assignment of the right to appeal without being able to assign the liability would place the liquidator in a potentially invidious position. That was not a risk the court should sanction given the potential implications for creditors.
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