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Totting Up (Penalty Point) Bans and Exceptional Hardship

Pragma Law
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Penalty Point Bans

If you commit offences which would result in an accumulation of 12 or more penalty points within a three year period, you face a driving ban of a minimum of 6 months. The court must disqualify you unless there are circumstances to mitigate the consequences of the conviction.

The 3 year period runs from offence date to offence date. It does not matter how many points you have on your licence by the time you get to court.

Exceptional Hardship Arguments

Exceptional Hardship is when there are mitigating circumstances which can be put forward to avoid a driving ban in certain cases. It is your opportunity to explain to the court what the consequences would be if you were disqualified.

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.

A court hearing will be required so that your evidence can be tested and questions put to you. Exceptional Hardship is not something which may be put forward in writing.

Court Proceedings

If you are due to reach 12 or more penalty points you will not be eligible for a fixed penalty for the usual offences, such as speeding, careless driving, using a mobile phone, or driving without insurance. You may be sent a letter stating that you have too many points on your licence. If not, any attempt to accept a fixed penalty notice will ‘bounce back’.

The matter will then proceed to court, usually by way of a Single Justice Procedure Notice.

If you plead guilty, some courts will automatically list your case for a court hearing. Other courts will send out a Notice of Proposed Driving Disqualification which gives you the option to request a court hearing.

When exceptional hardship may be used to avoid a ban

Exceptional Hardship is only relevant if you are facing a ban as a result of reaching 12 or more penalty points within 3 years.

Exceptional Hardship cannot be used for driving offences which carry an obligatory period of disqualification such as drink driving, dangerous driving, failing to provide a specimen etc.

Exceptional Hardship – factors not to be taken into account

Section 35(4) of the 1988 Offenders Act provides that none of the following circumstances should be allowed to be taken into account:

  • any that are alleged to make the offence or any of the offences not a serious one;
  • hardship, other than exceptional hardship; and
  • any circumstances taken into account by a court when the offender escaped disqualification or was disqualified for less than the minimum period on a previous occasion for totting up.

Examples of factors that cannot be taken into account

Those alleged to make the offence or any of the offences, not a serious one:

  • I was only just over the speed limit;
  • There was no other traffic around;
  • I was just keeping up with the other vehicles.

Hardship, other than exceptional hardship:

  • I will have to catch two buses to work which will mean I have to get up 30 minutes earlier;
  • I don’t like using public transport;
  • I won’t be able to attend my usual social events.

Circumstances taken into account with in the last 3 years. This means it is possible to argue exceptional hardship more than once within 3 years, but you must put forward different grounds each time.

More information can be found in our exceptional hardship FAQs below.

Penalty Points Ban Summary

Other Names

12 point bans, penalty point bans, 6-month driving bans, totting disqualifications

Legal Definition

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 unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction.

Main Legislation

S.35 of the Road Traffic Offenders Act 1988

The Court’s Options

No Exceptional hardship

The court must disqualify you from driving for a minimum of 6 months. It has no discretion to impose a shorter ban.

Exceptional Hardship found

The court has the discretion to:

  • disqualify you for a shorter period;
  • not disqualify you at all;
  • disqualify you for 6 months.

A totting disqualification of any length will wipe your licence clean of penalty points.

Lucy Whitaker

Lucy Whitaker

Director

Give me a call to discuss your driving case. I have many years’ experience dealing with all sorts of driving offences. You can read more about me here.

Why use us?

Contact us for a professional opinion about the strength of your case.

Our specialist driving offence solicitors have 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 intact, 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.

If you’re facing a totting up ban, get in touch. 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 for your court hearing.

Exceptional Hardship FAQs

What amounts to Exceptional Hardship?

A driving ban as a result of reaching twelve or more points is inevitably going to cost 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’. Depending on the circumstances, loss of a job may sometimes be enough in itself. However, it is the knock-on effects of loss of a job which can make the strongest argument.

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. This can include family members, colleagues or anyone else who would be affected by you being unable to drive.

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.

What Does an Exceptional Hardship Court Hearing Involve?

Presenting an Exceptional Hardship argument involves the driver giving evidence on oath or affirming about the consequences a ban would have.

The burden is on you 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 on oath that what we have said is accurate and truthful.

Usually, it will be necessary to provide certain documentary evidence to support that assertion and it is important you know what to take with you.

We can advise you on this whether you want us to represent you at court or not.

Can the Court Disqualify Me for Longer Than 6 Months?

The minimum period of disqualification for totting up 12 or more 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 previous orders of disqualification of 56 days or more, the minimum 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. If the new driving offence would take you to more than 12 points, the court could decide to impose a disqualification longer than 6 months.

Can the Police disqualify me from driving?

No. The police have no power to impose a driving disqualification. The police can only offer fixed penalties which carry points and a fine depending on the offence. You do not have to accept fixed penalties if you do not accept the offence. Only courts can impose driving disqualifications.

Is Loss of Job Enough to Show Exceptional Hardship?

Brennan v Mckay 1996

This is the most famous case for 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”.

Will the Court be More Sympathetic to Hardship Caused to Others?

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.

What do I Have to Demonstrate for the Court to Find Exceptional Hardship?

Exceptional hardship requires the driver to provide evidence that the hardship suffered would be ‘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.

Do I need a solicitor for an exceptional hardship case?

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.

Reviews

Pragma Law
5.0
Based on 38 reviews
powered by Google
Asad Ahmed
Asad Ahmed
15:41 21 May 21
5* have dealt with lucy twice now! Very professional. Knows what shes doing! Would definitely recommend!
Bobby Charles
Bobby Charles
19:05 07 Feb 21
I have had an extremely positive experience with Lucy Whittaker. She is very knowledgeable, very proactive and always... explains things in a clear and precise.She was able to convince the court to drop a driving without due care charge despite the police and the CPS disareeing.I would hesitate to recommend Lucy and Pragma Law anyone who needs assistance.read more
harry bedder
harry bedder
15:53 16 Dec 20
Fantastic Service provided by Lucy, very profesional and quick at getting you answers and providing the help you might... need! I will definitly be recomening Pragma Law to anyone I know that has a motoring proplem please do the same...read more
Jobin Mathew Joseph
Jobin Mathew Joseph
18:11 25 Nov 20
Absolutely brilliant! 100 percent reliable! The case was related to driving matter and I had initially approached few... other solicitors for help with my case. They all denied saying we would not win the case. But Lucy happily took the case and help me win the case with the best possible outcome.She puts you at ease and confidence. Very responsive in your queries. She genuinely care for case and very pleasant to deal with. Always well prepared and wins you the best possible outcome. Very Very Strongly recommend. Thanks much Lucy.read more
Lewis Cobley
Lewis Cobley
11:12 05 Nov 20
I highly recommend Pragma Law for any motoring problem. They were very efficient and professional even with little time... to prepare.read more
A Google User
A Google User
14:30 04 Jul 20
What can I say about pragma law and Lucy whitaker, 1st class absolutely brilliant!!!. I had my licence revoked last... October due to vasovagal syncope (faint) from the word go Lucy was brilliant, and I only dealt with her, she explained everything, in every stage extremely professional in everything she does, and had my licence back. What a result!!! thank you so much Lucy.read more
hannah vanessa
hannah vanessa
15:45 15 Jun 20
I suffer with anxiety (as many) and this incident completely took over my life for months until I met Lucy. I was super... comfortable and confident in her work as she was very professional and was always available to help. Really helped take the stress away - thanks Lucy and thanks Pragma!read more
Wayne Davies
Wayne Davies
14:51 08 Jun 20
What can I say about pragma law and Lucy whitaker, 1st class absolutely brilliant!!!. I had my licence revoked last... October due to vasovagal syncope (faint) from the word go Lucy was brilliant, and I only dealt with her, she explained everything, in every stage extremely professional in everything she does, and had my licence back. What a result!!! thank you so much Lucy.read more
Rukhsar Latif
Rukhsar Latif
13:59 19 May 20
Lucy genuinly cares about her clients she took on my case dealt with everything herself and won my case I couldn't be... happier with the results and the service. I will definitely be using Pragma Law again if needs be.read more
Vicky Clarke
Vicky Clarke
20:16 03 Mar 20
I couldn't have hoped for a better solicitor. Lucy did everything she could to get the best possible outcome for me,... and I can't thank her enoughread more
Paul Mercer
Paul Mercer
17:19 31 Jan 20
Lucy Whitaker provided an impressive, cost effective service. She was objective, responded quickly to questions and, I... believe, offered the best advice before efficiently dealing with a case as it came to court.I would have no hesitation either in using Lucy again, should the need arise, or recommending her services.read more
Rebecca Hodkinson
Rebecca Hodkinson
16:33 19 Nov 19
Lucy represented me in a driving case and I couldn't be happier. She was friendly, professional and pragmatic without... giving me false hope. The outcome was a more positive one than I expected and that's down to her advice and detailed preparations. Would highly recommend! Thank you Lucy!read more
Gary Sykes
Gary Sykes
22:12 04 Oct 19
We were so impressed with Lucy Whitaker. She represented our son in an unusual driving case which thanks to her... knowledge, care & understanding, ended in a much better than expected outcome. Clear, concise & professional, we highly recommend her... can't thank her enough!!read more
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I'm based in Nottingham and offer a nationwide service. Below is a list of the locations I cover most frequently. If yours isn't on the list, I would still be delighted to help you wherever you are in England or Wales.