Building Credibility: Witness Evidence in Construction Claims

1. Introduction: The Ongoing ‘Binary Conflict’
[Kate]: When a party issues a claim, unless it’s settled or withdrawn, where and when does it
end?
[Client]: In that horrible place we all hope it doesn’t, Kate…?
[Kate]: Correct! But, if it only ends there… what then?
[Client]: Well, we rally our troops, get our stuff together, map the team plan, implement the
team plan, map the game plan, implement the game plan, and inevitably go forth to the
(hopefully) final barney on all the stuff we, the parties, haven’t been able to agree on, you
know, the stuff we pay you for…??
[Kate]: Totally. And of course, our witnesses of fact have little to no impact on the success or
failure of that process. All out witnesses are top drawer people, never make mistakes, and
relish intense stressful questioning, performing superbly under it.
[Client]: ?!?!?!?!?!??!?!?!?”
Okay okay… so that first bit was a deceitful ploy attempting to opaquely use reverse
psychology on you, for which I won’t apologise, yet. However, I promise to be a little more
serious in the rest of this article.

This July 2026, I will be 14 years call. I have seen a fair amount of construction disputes in that time. And in that time, I have noticed in construction arbitration and high-value civil litigation more generally, an increasingly prevalent judicial approach developing where clear factual conflicts have arisen. This approach, which draws on e.g. psychological studies of memory, suggests a belief that that most factual disputes stem from human memory’s unreliability rather than dishonesty. In other words, courts often prefer to rely on documents— the enduring “immutable record” of commercial activity—rather than the changing nature of spoken (oral) evidence, especially as expressed during case management conferences and pre-trial reviews.

And who can blame them?

However, experienced advocates (and by that I firmly include experienced solicitor-advocates, not just ‘we barristers’) know that not all such disputes can be explained away by memory lapses or differing views. Inevitably, some cases involve direct contradictions between factual witnesses—such as disputes over whether an instruction was given or a notice delivered, or whether a variation was approved —where only one party can be telling the truth, leaving the relevant tribunal unable to simply attribute the conflict to ‘honest mistake’.

I raise this now because of an issue that has emerged and grown within modern construction litigation practice in the last 5-8 years. The widespread adoption of Pre-Action Protocols and mediation (a really great thing in my view) has, however, inadvertently led to the decline in demand for trial advocacy (in particular, forensic cross-examination skills), as settlement strategies are increasingly prioritised and assumed. As a result, the prevalence (and skill) of oral advocacy that once characterised the (junior) construction Bar is increasingly less in demand, often supplanted by an emphasis on procedure and documentary handling. This is, in my view, rather strange given that an issued claim inevitably ends up in arbitration or litigation, unless withdrawn or settled.

This shift has begun to pose a substantial risk: when cases proceed to trial or arbitration despite settlement efforts, in many cases lay clients require more than legal technical acumen—often, they need advocates adept at the psychological aspects of dismantling unreliable factual witness testimony, not just at trial stage, but also at ‘witness statement review’ stage – i.e. before trial is even a thing, and as an aid to settlement. The consequences are not only procedural but also commercial; without these specialised ‘trial skills’ (applied either earlier than the trial itself at witness evidence stage or at trial stage), both the truth and the associated liabilities may remain concealed.

This article offers a comprehensive examination of the legal, ethical, and psychological principles governing cross-examination in civil proceedings and the testing of factual witness evidence, particularly where advocates must (as dictated by the case and evidence before them) challenge the veracity of factual witness accounts. It brings together the requirements the evidentiary standards established by the Supreme Court, and current psychological research on deception and (perhaps controversially) certain personality disorders. This article contends that effective modern cross-examination in the TCC should be seen as a precise and expert process, relying on a sophisticated understanding of human behaviour, strict adherence to fair procedure, and careful application of evidence, and that this skill (deployed earlier at e.g. witness statement review stage and/or at early mediation) can be a secret weapon to aiding settlement in cases where there is perhaps a degree of factual uncertainty.

2. The Ethical Architecture: Alleging Fraud and Dishonesty
The decision to put to a factual witness that they are being untruthful is perhaps the gravest responsibility an advocate undertakes. It requires navigating a high-tension wire between the duty to the lay client to advance their case fearlessly and the paramount duty to the court not to mislead or make allegations without foundation. No advocate can take this lightly.

2.1 The Professional Obligation: Fraud “Reasonably Credible Material”

In true barrister style, I start with the thing that perhaps grates against civil lawyers most: allegations of fraud. This article is not, however, about fraud, but simply addresses this up front to then move onto the more ‘common’ evidential issues. Bear with me on this necessary pre-cursor.

Regulatory framework provides the initial boundary condition for cross-examination on dishonesty. With apologies to my solicitor-advocate colleagues for this barristerial tangent, the Bar Standards Board (BSB) Handbook establishes explicit prohibitions against baseless accusations. Specifically, Rule rC9.2(c) of the Code of Conduct dictates that a barrister must not draft any statement of case, witness statement, or affidavit containing “any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud”. While the rule explicitly references “drafting,” I personally take the underlying ethical principle to permeate the conduct of oral advocacy. The requirement for “reasonably credible material” acts as a gatekeeper. It prevents the advocate from acting as a mere mouthpiece for a client’s unfounded suspicions.

Client [Kate, is this even relevant to construction disputes?]
I think so, and perhaps is so more often than you think when one’s expertise inevitably lies in advocacy of the construction flavour. For example, a lay client may be convinced that a Quantity Surveyor has “colluded” with a subcontractor. However, without “reasonably credible material”—such as inexplicable payment certifications, metadata discrepancies, or contradictory correspondence—the advocate is ethically barred from putting a positive case of fraud to the witness.

The definition of “reasonably credible material” is nuanced. It does not require the advocate to e.g. possess ‘proof beyond a reasonable doubt’… It does, however, require material that elevates the allegation above the speculative. It must be sufficient to establish an “arguable case.” This distinction is critical in the TCC, where the volume of documentation can be vast. So e.g. a single ambiguous email is unlikely to suffice, but a pattern of undocumented variations combined with temporal inconsistencies in site diaries may well meet the threshold.

2.2 The Hierarchy of Duties: Court over Client The ethical framework is further nuanced by the prioritisation of Core Duties. How many lay clients have I had that have nearly fallen off their respective chairs when I tell them that my most important duty is to the court, and not to them? This is why, when I get into a case and meet potential future witnesses of fact, I give a well-practised, informative, yet light-hearted spiel about what being an ‘officer of the court’ means and that litigation means trial or an arbitration hearing if that button is pressed. Most find it fascinating, those who don’t tend to settle…

Core Duty 1 (CD1) of the BSB rules requires that barristers uphold their responsibility to the court in the administration of justice, and this obligation supersedes any conflicting duties to the client (CD2). This hierarchical structure becomes particularly significant when allegations of dishonesty arise. An advocate who presents a case of fraud without sufficient supporting evidence does not merely breach ethical obligations but also misleads the court by implying an evidentiary foundation exists where none does.

2.3 The Distinction Between “Mistake” and “Lie”
I have been asked many times over the years why I didn’t “go for [someone]” in cross examination. Firstly, because my view is that one ‘wins more with sunshine than with showers’ (to which, see below), but secondly because it is a matter of professional etiquette, evidence, and strategic necessity to distinguish between putting a case of mistake (on the one end) and a case of dishonesty (on the other). Court etiquette (particularly in civil cases) generally discourages the use of inflammatory language (“You are a liar”) in favour of more precise, forensic formulations (“when you said that [x] occurred, that was not the truth, correct?”)

However, in binary factual disputes—did the meeting happen or not?—asserting a mistake may not be the correct course if the circumstances in question preclude this being merely ‘an error’. If a witness claims to e.g. have personally inspected a foundation trench on a date when their passport clearly shows they were in Dubai, putting it to them that they are “mistaken” is euphemistic potentially to the point of absurdity. In such scenarios, the advocate is ethically  permitted, and indeed (in my view) professionally obligated by the duty to the lay client, to put the case of dishonesty, provided the “passport evidence” constitutes the reasonably credible material required.

However, even with this the advocate must exercise caution. This is because, in certain TCC disputes/factual circumstances, judges may be willing to accept that a witness is not deliberately misleading the court, yet still find that the witness’s ‘ability to persuade himself of the truth of an error which supported [their] case… must give [the court] pause for thought in assessing the balance of his evidence.’ This judicial caution introduces a third, nuanced finding (outside of dishonesty and simply mistaken belief): namely, the self-deceiving witness whose testimony is unreliable due to unconscious bias, which the advocate must still expose.

3. The Procedural Mandate: Browne v Dunn Revitalized
Do bear with me here because this section, importantly, remains deeply relevant to modern TCC and arbitration advocacy. The mechanics of cross-examination are governed not only by ethics but by the strict rules of evidence and procedural fairness.

3.1 The Fundamental Principle of Fairness
In simple terms, the rule in a case called Browne v Dunn basically says that if a party intends to invite the court to disbelieve a witness on a material point, that point must be put to the witness in cross-examination to afford them an opportunity to explain. It is a principle rooted in natural justice. It prevents “ambush” and ensures that the tribunal has the benefit of the witness’s reaction to the contradictory case before drawing adverse inferences.

In the context of TCC disputes, this rule remains paramount. Complex factual matrices often involve multiple layers of hearsay, site meetings, and technical discussions etc. If a barrister intends to submit in closing that a project manager’s diary entry was fabricated or that their recollection of a critical instruction is a lie, this must be challenged directly. Relying on the judge to notice the discrepancy in the bundle after the trial has concluded is a dereliction of advocacy. It is basic fairness.

3.2 TUI v Griffiths: The Supreme Court’s Reaffirmation
The continued vitality of Browne v Dunn was unequivocally affirmed by the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48. In this landmark decision, the Court held that a trial judge was wrong to accept criticisms of an expert’s report where those criticisms had not been put to the expert in cross-examination.

Although TUI concerned expert evidence, the judgment establishes a clear procedural norm: uncontroverted evidence—evidence that has not been challenged in cross-examination— must generally be accepted by the court. This creates a high-stakes environment for the crossexaminer (which only gets more technical, as will be seen below). Silence or “going easy” on a witness for tactical reasons carries the substantial risk that their evidence will be deemed accepted.

Basically, the judgment serves as a warning against the “subtle” cross-examination that hints at dishonesty without confronting it. If the advocate’s case is that the witness is not telling the truth, the witness must be given the chance to answer that charge. This does not require belligerence, but it does require explicit confrontation on the material points of conflict.

3.3 The Exceptions to the Rule
The Supreme Court in TUI did provide for specific exceptions where the obligation to cross examine may be relaxed. These are critical for the practitioner to understand to avoid unnecessary prolongation of trial:
• Collateral Matters: Where the challenge is directed to a matter that is collateral or insignificant to the core issues, fairness does not demand a line-by-line challenge.
• Manifest Incredibility: Where the evidence of fact is “manifestly incredible” or defies logic to such an extent that no explanation could salvage it.
• Bold Assertion: In the context of experts, where a bold assertion of opinion is unsupported by reasoning.

However, reliance on the “manifestly incredible” exception is fraught with danger in private construction disputes. A judge is unlikely to view sworn testimony regarding a private conversation as manifestly incredible without it being tested against the documents. Thus, the default posture for the diligent advocate must be to put the case fully and squarely. In other words, it is down the trial advocate to carefully navigate this legal landscape, while keeping the judge ‘on-side’.

3.4 Implications for Civil Practice
The interplay between more historic principles and the modern emphasis on efficiency does create a tension. TCC trials are often time-limited, with strict time limits on cross-examination. The advocate must therefore be meticulous in selecting the “material points” on which the witness must be challenged. It is no longer sufficient to rely on the general “weight” of the case; the specific instances of alleged dishonesty, ‘persuasion to their own case’ and/or mistake must be carefully identified and put. This requires a forensic preparation stage where every material factual assertion in the opponent’s witness statement/s is cross-referenced against the client’s case to ensure no critical challenge is omitted by oversight.

4. The Judicial Landscape: Memory and the Binary Truth
I briefly mentioned psychology earlier. This is because the approach of the courts to witness evidence has undergone a significant philosophical shift in the last decade, driven by a judicial desire to align legal fact-finding with scientific understandings of memory. The courts now recognise (even in civil cases) that human memory is inherently unreliable and prone to distortion, leading judges to place greater reliance on documentary evidence and objective facts. However, oral testimony remains important—especially where documentation is lacking or ambiguous—so judges must still assess the credibility and reliability of witnesses. Ultimately, the law adopts a binary approach to fact-finding: a fact either happened or it did not, with no middle ground. This underscores the critical importance of effective cross examination to ensure the judge is persuaded by your client’s version of contested events.

5. The Psychology of Deception and the Art of ‘the Cross’
Now to my favourite part. Effectively putting a case of e.g. untruthfulness requires more than legal knowledge; it demands a sophisticated understanding of the psychology of deception (by the witness of course, not the advocate!). Modern forensic psychology has debunked many of the traditional myths of lie detection, providing the advocate with a new arsenal of techniques. However, this has to be nuanced and tailored to the civil court system of England and Wales, which does not tolerate (nor wishes to facilitate) the more extroverted brand of advocacy that has the tendency to dog civil (jury) trials in e.g. the United States.

5.1 Demeanour vs. Corroboration: The Judicial Assessment
Traditional cross-examination folklore suggests that liars can be spotted by specific non-verbal cues: fidgeting, averting their gaze, touching their face, or hesitating… However, research also consistently demonstrates that these beliefs are generally unfounded (although, I must concede that I have caught out each of my four children in a fib due to their ‘disgust’ micro expression and/or the ‘opposite head action to verbalisation’…). In the round, it seems to be the case that there is a relatively a large body of research that has considered there is no reliable “Pinocchio’s nose.

This fact doesn’t really make much difference, in my view, when one is contemplating cross examination in the TCC. Here, such reliance on demeanour is of generally limited value. A civil judge is highly unlikely to make a finding of dishonesty, lack of credibility and/or lack of reliability based on (or largely on) a witness’s body language or ‘nervous ticks’. The advocate’s focus must therefore shift from subjective observation to objective contradiction anchored firmly in the case theory.

This principle was comprehensively stated by Mr Justice Eyre in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2972 (TCC)1 at [54 to 55]:

“In assessing those competing accounts, I will have some regard to the demeanour of the witnesses and the impression I formed having seen them in the
witness box. However, in doing so I remind myself that by itself demeanour can be an unreliable guide to the reliability of a witness’s evidence. In part this is because of the inherent unreliability of any judicial assessment of demeanour. What might appear to one judge to be evasion and a reluctance to answer questions indicative of unreliability in the evidence of a particular witness might to another judge be seen as commendable caution and care in giving evidence indicative of the reliability of the same witness’s evidence. It is also because of the capacity for a person to persuade him or herself of the truth of a recollection which turns out to be mistaken. That is compounded by the natural tendency for a witness to recall past events from a particular viewpoint and genuinely but mistakenly to recollect those events as having actually happened in the way in which the witness now with hindsight believes they would, or indeed should, have happened. A witness can be completely honest but also completely mistaken and it follows that the strength of a witness’s belief in the truth of the account which he or she is giving is of no assistance in assessing the reliability of that belief

…although I will have regard to the impression derived from the demeanour of Mr. Kite or of Mr. Ramanathan when giving oral evidence I will take care not to place undue weight on that impression. Rather I must look at the witnesses’ evidence through the prism of the contemporaneous documents; of their subsequent actions; of those events which are accepted or clearly demonstrated to have happened; and of inherent likelihood. The impression made by the demeanour of a witness must be set against those matters and to the extent that the contemporaneous documents in particular show a picture different from that depicted by a particular witness it is the former and not the latter which I should regard as more likely to be an accurate account of what happened.”

The assessment of a witness’s credibility—whether they are lying or merely mistaken—is instead governed by a matrix of external and internal consistency factors that allow the judge to prefer one account over the other. The witness’s account should be rigorously tested against:

• Commercial Sense and Motivation: Does the asserted course of action align rationally with the financial incentives, professional duties, and underlying motivations of the Lay Client or their opponent?
•  External Consistency: Is the account consistent with the documentary record, the evidence of other witnesses, and common sense?
•  Case Theory Coherence: Does the account fit logically within a plausible and coherent narrative of the entire dispute? Therefore, the primary goal of the cross-examination is to elicit voluntary statements from the witness that expose inconsistencies within this framework. This, in turn, allows the advocate
  1 Full disclosure, this is a case I acted in as sole counsel for the Defendant

to invite the court to conclude that the witness’s evidence is of such low credibility that it must be dismissed, without necessarily requiring a finding of fraud unless that is central to the pleaded cause of action. The ultimate question therefore becomes: how do we do that, particularly where an astute witness is likely to know that is the aim?? That is where you need an experienced trial advocate. Let me explain with a (hopefully) interesting example and psychological titbits to sweeten the deal.

Case Study: Mansion v. Fox
Let’s take the methodology in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2972 (TCC) as a case in point. The case involved a direct conflict over an unwritten agreement during a conversation between D’s Mr Kite and C’s Mr Ramanathan in October 2020, compelling the judge, Mr Justice Eyre, to assess which witness’s recollection was more reliable. The judicial preference for the successful party’s account (Mr. Kite) was determined by objective inconsistencies exposed under cross-examination, reinforcing that forensic dismantling rests on documented fact.

Mr Justice Eyre adopted a judicial framework rooted in established principles of fact-finding, notably relevant to commercial disputes involving recollections of conversations:

• Scepticism Toward Memory: The judge recognised the inherent unreliability of human memory, noting that even honest witnesses may be mistaken and that confidence in one’s recall offers limited utility in assessing reliability, particularly where events are historic and memory is reconstructed.
• Emphasis on Objective Factors: Mr Justice Eyre underscored the necessity of assessing witness evidence through contemporaneous documentation, subsequent conduct, verified occurrences, and inherent plausibility.
• Limited Reliance on Demeanour: Although the judge considered witness demeanour, he was careful not to overvalue it due to its subjectivity, echoing the principle that substantive merits in evidence outweigh impressions formed from demeanour. Nevertheless, the judge found Mr Kite’s testimony reflected genuine recollection.

In my view, however, the relevant factors were more decisively those of independent of direct witness recollection (brought out subtly in cross-examination).

Firstly, material support for Mr Kite’s account stemmed from the immediate responses following the October 2020 conversation, namely Mr Higginbottom’s understanding:

• Prompt Communication of Agreement: Mr Kite spoke with Mr Higginbottom shortly thereafter, and Mr Higginbottom’s later email (in November 2020) explicitly indicated his belief that an agreement had been reached: the Claimant would not pursue liquidated damages, and the Defendant would forego additional preliminaries.
• Reliability Inferred: The judge was satisfied that Mr Higginbottom’s statement, composed for internal strategic advice, was authentic and likely resulted from an accurate interpretation of Mr Kite’s report.
• Consistent Adoption: Mr Kite did not challenge this understanding but instead affirmed Mr Higginbottom’s summary, demonstrating consistency with his court testimony.

Contextual circumstances provided significant rationale for Mr Kite’s interpretation of the conversation:

• Kite’s Motivation: Prior communications revealed Mr Kite’s discontent with the project, expressing willingness to “not go for extra prelims” if the risk of liquidated damages was eliminated.
• Resolving Distrust: Given Mr Kite’s pronounced distrust towards C, mere indications of later dispute resolution (as per Mr Ramanathan’s account) would have been insufficient. The conviction that a definitive mutual agreement had been reached best explained Mr Kite’s subsequent positive actions and remarks.
• Commercial Context: While the Claimant argued against the practicality of withdrawing substantial claims, the backdrop of the Covid-19 pandemic and the urgency to avoid delay or abandonment by the Defendant rendered the decision commercially reasonable as a means to secure completion.

Further, Mr Ramanathan’s testimony exhibited material inaccuracies and inconsistencies when weighed against objective evidence:

• Incorrect Sequence of Events: Mr Ramanathan asserted that he contacted a Mr Maunder and authorised a letter after speaking to Mr Kite, supporting the Claimant’s perspective that no agreement existed. However, documentary evidence contradicted this, confirming the letter was sent hours before the conversation. The judge considered Mr Ramanathan’s conviction in an erroneous account significant in undermining his reliability.
• Insufficient Specificity: while Mr Kite credibly recalled specific details—such as the phrase “not a contractual company”—Mr Ramanathan’s denial suggested lesser reliability regarding critical exchanges.
• Silence on Agreement Assertion: C did not refute D’s assertion of agreement in later correspondence. Although the judge placed less emphasis on this omission, he found Mr Ramanathan’s rationale for remaining silent (to avoid antagonism) unconvincing, given the parties’ entrenched positions.

In conclusion, both witnesses were deemed honest; however, the judgment ultimately relied upon the relative reliability of their recollections. Objective evidence, particularly regarding Mr Higginbottom’s immediate understanding and the context motivating both parties, compellingly supported the view that the conversation constituted a mutual abandonment of claims, as maintained by Mr Kite.

5.2 Expert Cross-Examination Tactics – Structured Conversation
This is where my solicitors start to tell me that I am a geek and glaze over (rude, but I let it slide). But, this is where I firmly believe the ‘science of advocacy’ (not simply the ‘art’ of advocacy) needs to be reiterated, because it is not, at TCC multi-million pound, 10-week trial level, simply a series of ‘closed questions’ ‘a la Bar School’. It is a separate, researched, learned and practised skill in and of itself.

By way of pure example, a robust psychological framework for cross-examining witnesses of fact who are suspected (in a civil context) to be ‘untruthful’ should, in my view, include consideration of leveraging Cognitive Load Theory i.e.: lying is mentally taxing – a truthful witness recalls stored memories, while a liar must construct a plausible narrative, ensure consistency with known documents, monitor the interrogator, and suppress the truth. The high cognitive load makes the liar vulnerable.

The sophisticated trial advocate increases this load, but not through belligerence (because this risks alienating the judge), but through a structured conversation that uses social techniques such as e.g. empathy and apparent deference to effectively control the narrative. I have repeatedly found that this non-confrontational approach yields far more significant contradictions, as the witness’s guard is lowered, it increases the cognitive demands of maintaining the lie, and more often than not do so without the witness realising it (leaving a decent amount of material for closing submissions).

These advanced conversational tactics are deployed in order to achieve specific psychological outcomes:

• Establishing Rapport and Control: by finding common ground or expressing empathy, the advocate temporarily lowers the witness’s defensive screen, committing them to afoundational set of facts before the conflict arises.
• Eliciting Voluntary Commentary: asking the witness to “assist” in understanding complex documents or timelines feeds a professional’s need for authority, often leading them to offer voluntary explanations and commentary that inadvertently fill the gaps in the opposing case theory or create unprompted inconsistencies.
• Strategic Sequencing: the cross-examination is sequenced to subtly guide the witness through points of agreement, delaying the moment of conflict until they are irrevocably committed to an account that is about to be contradicted by an objective anchor.

By integrating these subtle conversational techniques with traditional load-increasing methods—such as Non-linear Questioning or Reverse Order Recall—the advocate avoids a direct, unproductive confrontation, instead leveraging the witness’s own psychology to expose the fabrication.

Of course, such strategies do not work for every witness. That is where the advocate’s research, review of the papers, understanding of the commercial and factual context, ‘feel’ for their client’s own factual witnesses (as well as any helpful notes gleaned from potential opposition witnesses of fact observed during mediation) and their general expertise, are important.

5.3 The “Strategic Use of Evidence” (SUE)
Obviously, the SUE technique is highly applicable to document-heavy TCC litigation. It involves withholding the contradictory evidence (the “anchor”) until the witness has fully committed to their false narrative.

For example, if a witness claims they were not on site on a specific Tuesday, the ineffective cross-examiner immediately shows the site diary proving they were. The witness then adapts: “Ah, yes, I forgot, I popped in for ten minutes.” However, the effective cross-examiner, utilising SUE, locks the witness in first. Only once the witness is irrevocably committed to the lie is the site diary produced. The contradiction is then total, precluding the “mistake” explanation and damaging the witness’s overall credibility.

6. The ‘Narcissistic’ Factual Witness: A Specific Challenge
I approach this section with caution and emphasising the need for science-based analysis. My reference to ‘narcissistic witness’ may ring like a ‘headline grabbing’ reference to modern ‘pop psychology’. I acknowledge that the term ‘narcissist’ has too frequently been bandied about as a label to describe persons who have demonstrated (on one or more occasions) a level of self-serving behaviour generally considered unacceptable by a social sphere or, perhaps, the ‘man on the Clapham omnibus’.

However, what I am discussing here is the more narrow case of the factual witness who truly demonstrates clinically high and persistent levels of narcissistic traits, to a degree of severity that makes their behaviour only ‘make sense’ when seen in the context of the complex psychological condition that is Narcissistic Personality Disorder (or NPD).

NPD is underdiagnosed in society generally. As I have become more senior in practice, I have more frequently encountered witnesses (CEOs, directors, HNWIs, investors etc) exhibiting what I consider to be high level traits customary of high-conflict personalities, particularly Narcissistic Personality Disorder (NPD) of what is sometimes referred to as the more ‘grandiose’ type, typically manifesting as e.g. a need for admiration, lack of empathy, and hypersensitivity to criticism. These types of witnesses are often charismatic, superficially plausible, and adept at manipulation—making them potentially difficult opponents.

6.1 The Profile of the ‘Narcissistic Witness’
Witnesses of this nature (i.e. those demonstrating high levels of narcissistic traits) can view a trial not as a search for truth but as a stage for their validation. They often believe they are intellectually superior to the lawyers and the judge. They will therefore exhibit a tendency to resist direct answers to (even reasonable) questions, attempt to control the narrative, may resort to “gaslighting” (denying reality) when challenged, and, on occasion, personal attacks on the lay client and/or advocate personally. Often, they are highly intelligent and can be incredibly well-prepared for their cross-examination, perhaps a dual combination of ‘knowing their lines’ for their performance, and their inherent need to ‘protect themselves from exposure’. They are often characterised by:

• Victimhood/Heroism: They rewrite history to place themselves as either the persecuted victim or the heroic saviour of the project.
•  Absolute Certainty: They rarely admit to doubt or lack of knowledge, viewing it as a sign of weakness.
• Narcissistic Rage: When their competence or integrity is challenged, they may react with disproportionate anger or, more frequently in a professional level, disdain.

6.2 Strategies for Cross-Examination
Recognising that an opposition witness is displaying signs of a high-conflict personality at an early opportunity is very important, because more ‘assertive’ cross-examination strategies often fail with such witnesses; this is because they are (as stated above) highly intelligent, are adept at playing the ‘victim’/’hero’ dichotomy, and tend to thrive on conflict. Conflict of any kind that they are involved in means they are given ‘attention’; whether the attention is negative or positive is generally irrelevant to someone with such a degree of narcissism as the former fits for their ‘victim’ role, the other fits for their ‘hero’ role. Specialised and sophisticated strategies are therefore required to utilise these psychological traits when dealing with such witnesses if one is to illicit the desired evidence from them. This can include (by way of example):

• The Ego Bait: i.e. initially allowing the witness to expand on their achievements, authority, and central role. This feeds their grandiosity, encouraging them to claim total control or definitive knowledge over matters which they should otherwise deny to avoid liability. Once control is gained, it can be undermined with specific instances of oversight.
• Pin-Down via Anchors: since NPD/high conflict personality witnesses tend to be evasive and often answer the question they wish they had been asked, the advocate should attempt to use precise, closed questions anchored in indisputable facts, in a manner that appears affable, not critical.
• Triggering Overconfidence: individuals with NPD/high conflict personalities often take pleasure in their perceived ability to outsmart the interrogator. By allowing them a small, calculated “win” on a minor point, this can induce overconfidence, causing them to become careless with more major facts as they relax their guard.
• Exposing Lack of Empathy: in cases involving e.g. professional negligence, questions that invite the witness to consider the impact of their actions on others often elicit cold, arrogant, or dismissive responses. This demonstration of a lack of affect can be more damaging to their credibility in the eyes of the judge than any factual contradiction, but must be used with caution.

6.3 Strategic Variance: The Bespoke Approach
The fundamental lesson of forensic psychology applied in a civil context (particularly in the TCC) is that there is no universal approach to cross-examination. An advocate must possess the judgment to be able to (at the one end) adopt the empathetic, guiding style required for the genuinely mistaken witness – where the goal is to demonstrate simple memory failure – to (on the other end) the highly controlled and psychologically geared style required for the dishonest witness – where the goal is to demonstrate deliberate fabrication and/or character flaw that means the witness has convinced themselves (for whatever reason) that their version of events is genuinely the right one, even if it patently is not. This strategic variance can only be determined by an advocate undertaking a holistic assessment of the witness’s pre-trial conduct, the case theory, their performance e.g. at mediation, and/or their performance in the opening minutes of cross-examination. The ability to identify the correct psychological profile and instantly adapt the questioning style— e.g. from sympathetic open questions to tight, closed anchors—is the hallmark of advanced civil trial advocacy and determines whether the court accepts a finding of “mistake” or is compelled to find the evidence “fundamentally incredible.”

7. Conclusion
Cross-examination in the modern civil court is a disciplined, intellectual exercise. It is not about theatrical displays but about the surgical dismantling of a false narrative. In the TCC, where the presumption of “mistake” is strong, the advocate who alleges dishonesty must do so with precision, supported by a robust evidentiary foundation (“reasonably credible material”) and executed with psychological acuity.

By adhering to ethical boundaries, respecting the procedural imperative of previous case law, utilising advanced questioning strategies derived from an understanding of memory and personality, the advocate can transform the cross-examination from a blunt instrument into a decisive tool. The ability to effectively challenge a lying witness—whether they are a calculating fraudster or a grandiose narcissist—remains the hallmark of the expert trial advocate, essential for the administration of justice in a binary system where facts either happened or they did not.

Article by Katie Lee