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. 

s.35 of the Road Traffic Offenders Act 1988  states that a person who accumulates 12 penalty points or more within a three year period must be disqualified from driving for a minimum period of six months.  This referred to as the totting up of penalty points or just "totting". Therefore you should not be offended if you hear yourself referred to as a "totter" in court!

On the serious side, being disqualified for months can have catastrophic consequences for many people. They may rely on their licence for their job, to pay their mortgage or rent, and have a family to support.  They may have other people such as elderly or disabled relatives who rely on them for transport and/or care.  They may run a business and their inability to drive would mean that their employees would lose their jobs or have to take a pay cut.

Nottingham 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.

A driving ban as a result of reaching twelve or more points is supposed to cost a driver money, and cause inconvenience. After all it is meant to be a punishment. Therefore the court will only find exceptional hardship when the consequences are something 'out of the ordinary'. Loss of a job is not usually enough in itself, but the consequences of losing your livelihood and the roof over your head is a different matter.

Exceptional hardship does not need to be financial. It can exist if there will be a substantial impact on mental health or if it impacts in other ways. Courts are obliged to take into account the impact on others and should have more sympathy when there is to be an impact on innocent third parties.  

Courts need a certain level of detail if they are to make a favourable decision. It is not advisable to attend court without documentary evidence of some sort. Courts are aware that no-one wants to lose their licence and can be sceptical if claims are not backed up somehow. We can advise you of the evidence that you need to take with you to satisfy the court of your argument. 

Presenting an Exceptional Hardship argument involves the driver giving evidence on oath about the consequences a ban would have in order to persuade the court that it would result in Exceptional Hardship to themselves and/or others. If we are to represent you, the amount of speaking you will need to do in court will be significantly reduced. Often the court will allow us to put forward your argument for you and then confirm oath that what we have said is accurate and truthful. 

Often it will be necessary to provide certain documentary evidence to support that assertion and it is important you know what to take with you. Obviously, we can advise you on this whether you want us to represent you at court or not.

The minimum period of disqualification for the totting up of points is six months, but the court must increase the disqualification to one year if you have been previously disqualified for 56 days or more within the last three years.

If there are two such orders of disqualification the period is two years.

However, if you are convicted on the same occasion of more than one offence, the court can still only impose one driving ban for totting up.

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.

We have represented countless motorists and drivers who have found themselves in this position and have successfully avoided a driving ban or reduced the ban on appeal for them.

We will advise you at the outset in as to the prospects of success of your case so that you can make an informed decision whether to spend the money on court representation. We pride ourselves on giving honest advice and if there are doubts about the strength of your case, we will tell you. 

That said, with our experience, should you choose to represent us, we’ll do our utmost to ensure your case is the strongest it can be to ensure the best possible outcome for you. We’ll ensure you’re fully prepared for the court hearing so you know what to expect. We will advise you of what documentary evidence to gather to present your case and prepare you in relation to the court procedure. 

The court may decide to do one of the following:

  • Impose the penalty points but not disqualify you
  • Disqualify you for a shorter period than the usual minimum of 6 months
  • Still disqualify you for 6 months (although this is far less likely)

Yes, if you receive a ban as a result of totting up, then no matter what the length of the ban, when it expires you will have a clean licence for the purpose of totting up. Please note that you will still need to declare the convictions to your insurance company.

You can only put forward one successful Exceptional Hardship argument on any particular grounds once every three years. You can, however, put forward unlimited arguments on different grounds.

If you want to put forward Exceptional Hardship more than once within 3 years, you will have to satisfy the court that you have not used those particular grounds before. The reasons that the court found Exceptional Harship should be recorded by the court that dealt with the hearing. However, the lack of detail recorded can mean that you have to explain to the court what grounds you have used and what you have not before they will hear your argument. 

The three-year timescale runs from the date of the conviction, not the offence. 

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 seek advice before proceeding.

No, as the points are relevant for three years from the date of the offence. The number of relevant points are those as at the time of the current offence, not the conviction or court hearing date.

This is to prevent people from being able to manipulate the system by deliberately delaying their court hearing to avoid a driving ban.

Yes, you can appeal against a finding by the magistrates that would be no Exceptional Hardship, but it's better to get it right the first time. It'll be cheaper and far less stressful for you if you do.

If you want to appeal, this will be to the Crown Court which is a higher court. Although essentially you effectively get a new hearing of your case, the Crown Court is slow to interfere with Magistrates' decisions unless they are clearly wrong. If you are unsuccessful, the court can order you to pay costs. For this reason it is extremely important that you seek advice before going to appeal.

Please be aware that there is a 21 day deadline for appealing to the Crown Court from the Magistrates' Court, so you need to take advice as soon as possible. 

See more about appeals here.