[2025] EWHC 2294 (Ch)

Mr Kienlen

Very shortly before trial, on the Applicant’s application, Mr Kienlen was granted permission to give his oral evidence remotely from Greece. This proved to be a mistaken indulgence, as Mr Kienlen then treated his time in cross-examination as an unwanted interruption to a family vacation, expressing impatience at the time that the cross-examination was taking and stating that he had children to look after. This was an unprofessional approach for Mr Kienlen, as an officer of the court and as the Applicant’s only witness, to adopt when giving evidence at trial.

In the event, from Mr Kienlen’s responses in cross-examination it was clear that he knew very little of any probative value about the issues arising in this case. He had not attended any of Mr Adamson’s meetings with the Company during the run-up to its entry into CVA or at any time during the course of the CVA itself. He had no knowledge of when and where such meetings took place or what was discussed at the same. He had nothing to do with the CVA and was a joint supervisor in name only. He had nothing to do with the administration that followed, for the first 18 months of that administration up to Mr Adamson’s death in June 2022.

He had taken few if any steps to investigate matters properly. He confirmed in cross examination that he had not discussed the Payments with Mr Adamson at any time prior to Mr Adamson’s death. He said that he ‘could not comment’ on why Mr Adamson had not taken any action in relation to the Payments.

He had met the Respondent once, for 15 minutes, at the Respondent’s request and had never met Mr Botting, the Company’s CFO. I was taken to no evidence to suggest that he had attempted to interview Mr Botting or the Respondent’s co-director, Mr Jason Lartey, or that he had ever sought information regarding the Payments from Ms Bamforth, formerly of AW, who had attended many of the meeting which Mr Adamson had with the Company in the run up to its entry into CVA and during the CVA itself. In the absence of any such evidence I consider it legitimate to conclude that he had not.

Notwithstanding the Respondent’s repeated requests for copies of the attendance notes typed by Mr Adamson and his assistant Ms Heather Bamforth on their laptops during the numerous meeting which they had attended with the Respondent and Mr Botting, Mr Kienlen had not exhibited any of these typed notes to his witness statements. He stated that he had been ‘unable to find’ Mr Adamson’s notes and that there were not any meeting notes at his offices: see [74] above. He had not taken any steps to arrange a download of any relevant notes stored on the laptops used by Mr Adamson and Ms Bamforth during their meetings with the Respondent. When asked in cross examination whether there had been such a download, he responded, ‘not so far as I am aware’. The only material file note produced by Mr Kienlen was Mr Adamson’s handwritten note of the MS Teams call between Mr Adamson, Ms Jo Smith (then acting as AW’s solicitor) and the Respondent on 23 June 2021. This was exhibited to Mr Kienlen’s second witness statement, following the Respondent’s specific requests for the same: see [78] above.

Mr Kienlen’s written evidence contained demonstrable inaccuracies. At paragraph 14 of his second statement, for example, he stated that the payments made to the Respondent between April and December 2019 ‘were not equivalent to his salary’ when, averaged out on a monthly basis and net of PAYE/NIC, they plainly were.

By his second and third witness statements, Mr Kienlen wrongly stated that the Respondent had continued to draw a salary over the period April to December 2019 whilst also repaying his loan account. This was a particularly troubling inaccuracy, given that (i) by the time of his second witness statement, Mr Kienlen had reviewed an email dated 5 February 2020 from Studholme Bell (the payroll providers) (‘SB’) to Ms Bamforth (formerly of AW) attaching a P45 which SB had prepared for the Respondent for the period April 2019 to December 2019 confirming the salary received to be nil (ii) AW had by letter dated 24 March 2020 to the Respondent (reviewed by Mr Kienlen before it was sent out) confirmed that P45 position (ie that no salary had been received over the relevant period) without qualification and that (iii) by the time of Mr Kienlen’s third witness statement, Ms Hill of RPC, AW’s own solicitors in the Part 7 claim brought by the Respondent against AW, had already filed a witness statement on behalf of AW in those proceedings confirming that the Respondent had not drawn a salary over the relevant period. Yet Mr Kienlen made no attempt in chief to correct his second and third witness statements in this respect. He remained defiant and entirely unapologetic on the issue throughout his oral testimony.

Mr Kienlen could not confirm the provenance of a number of documents exhibited to his own witness statements, including inaccurate documents relating to salaries and PAYE paid which, on the evidence as a whole, must have been put together by his own office or by his solicitors; they certainly did not form part of the Company’s books and records. At paragraph 8 of his third witness statement, for example, he referred to ‘monthly payroll summaries for the period April 2019 to November 2019’, which he stated that he had been ‘provided with’, without stating who provided them or who had prepared them. This was potentially misleading, as in the same paragraph he referred (with emphasis added) to ‘the Company’s payroll summaries’ which, when read in context, could be taken to imply that the ‘payroll summaries’ which he claimed to have been ‘provided with’, and which were exhibited to his second witness statement, formed part of the Company’ own books and records, when it was plain from the evidence as a whole that they did not. This appears to have been an attempt to ‘bolster’ a false narrative that the Respondent had continued to receive a salary over the period April to December 2019, when he had not.

Mr Kienlen’s written evidence also contained assertions of purported fact without reference to any supporting documentation. At paragraph 27 of his first witness statement, for example, Mr Kienlen asserted that as at 25 April 2019, the Respondent was a creditor of the Company pursuant to his director’s loan account in the sum of £89,159.68, without stating the source of that figure (which differed from the figure of £97,445 given in the statement of affairs), without exhibiting to his statement any documents to vouch or explain the lower figure and without any reference to or acknowledgement of the contractual interest rate of 8% payable on the debt owed by the Company to the Respondent (evidenced by the Company’s statutory accounts), of which he later admitted in cross examination that he had been unaware.

Mr Kienlen’s written evidence also contained expressions of opinion and comment which, whilst ultimately of negligible if any probative value, again appeared designed to ‘bolster’ the Applicant’s case. At paragraph 13 of his second statement, for example, he stated that he ‘[did] not accept that Mr Adamson, who was an experienced insolvency practitioner and who eventually became the supervisor of the CVA, would have advised the Respondent or the Company at any stage to take any steps which contradicted statements made in the CVA proposal to the creditors.’

Mr Kienlen’s written evidence also included his subjective views on Mr Botting’s notes of the meeting which the Respondent and Mr Botting attended on 20 December 2018 with Mr Adamson and Ms Bamforth; a meeting which Mr Kienlen did not attend and knew nothing about. He went on to claim in oral testimony that he did not think Mr Botting’s notes of the meeting on 20 December 2019 were contemporaneous, without offering any explanation or evidential basis for that opinion. Mr Botting’s evidence (which I accept) was that the notes were contemporaneous. Even the Applicant confirmed by Counsel that it was no part of their case that the attendance note was not contemporaneous.

By his second witness statement, Mr Kienlen introduced a ‘spin’ on an email exchange between Ms Bamforth and Studholme Bell, the payroll providers, in early 2020. Having summarised that email exchange, Mr Kienlen went on to comment: ‘It is clear that HB [Ms Bamforth] understood that the Respondent had been receiving salary. It should be noted that HB was present at the meeting on 20 December 2018.’ As previously observed, there is no evidence that Mr Kienlen ever discussed the Payments with Ms Bamforth before preparing his evidence and I have considered it legitimate to conclude that he did not. The email exchange which Mr Kienlen had thought fit to summarise and then comment upon did not, of itself, come anywhere close to making ‘clear’ what Ms Bamforth’s understanding was on the issue whether the Respondent was receiving a salary over the relevant period. This was again a plain attempt to ‘boost’ the Applicant’s case without justification.

Mr Kienlen also asserted (at paragraph 34 of his second witness statement) that the notes of the meeting held on 23 June 2021 and attended by Mr Adamson, Ms Jo Smith, then acting as AW’s solicitor and the Respondent (which, again, Mr Kienlen did not attend) (with emphasis added) ‘show that the Respondent was asked by Mr Adamson why he came off the PAYE in April and started making payments to reduce his loan account’. Mr Kienlen then went on to comment: ‘The rationale behind that decision does not therefore appear to have been known to Mr Adamson at the time’; when in fact from the Respondent’s evidence (which in this regard I accept), the relevant question was asked at the meeting of 23 June 2021 not by Mr Adamson but by Ms Jo Smith; who now acts as solicitor for the Applicant in these proceedings and who has refused to disclose her own attendance notes of the meeting of 23 June 2021 on grounds of ‘privilege’ – see [79] above.

Overall, Mr Kienlen’s written evidence was not prepared with the care and candour required of formal evidence bearing a statement of truth. Whilst Mr Kienlen made more of an effort in oral testimony to answer questions put to him honestly and to the best of his recollection, it was clear from his testimony overall that he knew little of any probative value about the case and that he lacked objectivity. When asked why he had made his third witness statement, he said that he had been ‘told to’. Having considered the evidence as a whole, I have concluded that save where admitted or supported by context or contemporaneous documentation, his evidence should be treated with a degree of caution.