Exceptional Hardship & Avoiding a Totting up Ban
Exceptional Hardship is a special argument which can be put forward to avoid a ban in certain cases. It cannot be used for offences which carry an obligatory period of disqualification such as drink driving, dangerous driving, failing to provide a specimen etc.
It is only relevant if you are facing a ban as a result of totting up. Please refer to our totting up of penalty points and avoiding bans page for more information about when this argument can be used.
Derby based Solicitor, Lucy Whitaker has represented countless motorists who faced a totting up ban of at least six months. On virtually all occasions, the driver has walked away with their licence in tact, or with a much shorter ban. This is because we have been able to put forward an exceptional hardship argument to the court which gives the court discretion either not to ban the driver, or to ban them for a shorter period following which, the driver’s licence is returned without points.
Below is some further information explaining what exceptional hardship is. If you’re facing a totting up ban, give us a call on 0330 1330 081. We’ll give you an honest opinion about your chances of success so you can make an informed decision as to whether to instruct us.
Loss of job is not necessarily enough to show exceptional hardship
Brennan v Mckay 1996
This is the most famous case on Exceptional Hardship. The case involved a taxi driver who had faced a totting up disqualification as a result of a conviction for speeding. He had submitted that the loss of his licence would probably result in the loss of his job, that he would have difficulty in finding another and that this would cause hardship to his family. He had been disqualified for six months. He appealed unsuccessfully. It was held that although the disqualification would cause hardship, this would not amount to “exceptional hardship”.
The Court should be more sympathetic to hardship causes to innocent third parties than the driver
Cornwall v Coke 1976
The driver was a social worker who faced a ban under the totting up rules. His work included transporting the elderly, but he accepted that he was not liable to be dismissed from his job if he was disqualified. The court clerk wrongly informed the court that hardship to the public could not be a mitigating circumstance entitling them not to disqualify under the totting-up provisions. The court therefore disqualified the driver for six months. He appealed successfully. It was stated that hardship to the public is a mitigating circumstance, and indeed is rather stronger mitigation than hardship to the offender, and that therefore the magistrates did have a discretion. As a result his disqualification was lifted completely.
Exceptional hardship requires the driver to provide evidence that the hardship suffered would be been out of the ordinary
Fay v Fay 1982
This is not a criminal case; it is a family case where the question of exceptional hardship was considered. The resulting principles are still relevant to exceptional hardship in motoring offence cases.
The main point made by the court was that the question of whether the evidence is sufficient to make out a case of exceptional hardship is a matter of assessing the evidence, rather than a matter of inference ie. ensure you go to court prepared with evidence to back up what you’re saying. The hardship must be exceptional, not just hardship.
Circumstances which have already been taken into account cannot be taken into account again within a 3 year period
You can only argue exceptional hardship once every three years on any particular grounds. The three year timescale runs from the date of the conviction, not the offence.Therefore if you wish to put forward exceptional hardship a second or third time, you must have a different reason for the resulting exceptional hardship.
The onus is on you to show you’ve not put forward the same exceptional hardship argument before
R. v Sandbach Justices Ex p. Pescud 1983
This case confirmed that is for the defendant to establish the fact that the mitigating grounds are different by producing the court register or by calling evidence; it is not for the court to simply make assumptions.
In practise, the court register is almost always very vague which may or may not work to your advantage. Also, it’s sometimes a fine line as to whether a certain argument has been put forward before or not. Therefore it’s best to take up our offer of free initial advice.
Watch our video on Exceptional Hardship