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.

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”.

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 a hardship to the offender and that therefore the magistrates did have a discretion. As a result, his disqualification was lifted completely.

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.

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.

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