What Is Exceptional Hardship?
If you receive 12 or more penalty points on your driving licence within a three-year period, you can face an automatic driving disqualification under the UK's totting up system. A totting up ban lasts for six months in the first instance, but longer disqualifications and other penalties may also be applied - if you have been banned before, you could face a disqualification period of up to two years. Depending on your circumstances, a totting up disqualification can also have serious consequences for your employment and your insurance premiums.
Needless to say, this can seem like an excessive punishment, especially if the penalty points you received were for a relatively minor offence. You have the option to defend a driving offence in a court hearing instead of accepting the penalty points and fine, but this requires you to present strong evidence to challenge the prosecution's case.
However, in situations where you are facing a driving disqualification, it may be possible to avoid a driving ban on the basis of an ‘exceptional hardship’ argument. This is a type of defence where you demonstrate that a driving disqualification would have an exceptionally adverse effect on your life or on innocent third parties (such as dependents and employees). It takes strong evidence to demonstrate exceptional hardship and an experienced motoring offences solicitor to build your case.
In this blog post, the expert driving ban solicitors at JMW explain how an exceptional hardship argument works, the circumstances in which exceptional hardship arguments may be successful, when it can't be used, and how you can find out more about your legal options. If you are alleged to have committed a driving offence and are facing a six-month driving ban under the totting up system or a longer ban due to at least one other previous disqualification, contact our team today to find out how we can help.
How Does an Exceptional Hardship Argument Work?
The phrase "exceptional hardship” refers to a legal argument that a driver can make to avoid an automatic driving disqualification of at least six months under the “totting up” procedure outlined in the Road Traffic Offenders Act 1988. However, it does not have a strict statutory definition. Instead, the court determines whether an exceptional hardship application will succeed on a case-by-case basis.
The term means arguing that the consequences of disqualification would be out of the ordinary for you, and amount to more than the typical inconvenience or difficulty most people experience when losing their licence. Notably, loss of employment alone does not amount to exceptional hardship. The law recognises that disqualification can sometimes cause disproportionate harm to others or to the driver’s livelihood, which may justify allowing them to continue driving despite reaching 12 points.
There are several circumstances under which you may be able to argue exceptional hardship, and it is important to work with an experienced solicitor from the outset if you believe you may be able to use this defence. You will need to gather evidence to support your argument that you would suffer exceptional hardship if your ban applied, and make a compelling argument in favour of retaining your licence.
The team at JMW can discuss exceptional hardship based on the specific circumstances of your potential driving disqualification, advise you on whether it is likely to succeed, assess whether other defences may be more suitable and help you to gather supporting evidence.
What Are Examples of Exceptional Hardship?
There are only certain situations that constitute exceptional hardship and allow you to avoid disqualification. Arguments based purely on inconvenience, such as having to use public transport, facing longer commute times, or being restricted in your social activities, are unlikely to succeed.
Courts consider the wider impact of disqualification and the hardship must be demonstrably more severe than what the average driver would face. Examples of exceptional hardship cases that may be accepted by the court in some circumstances include:
- Loss of employment, if the individual’s job relies on driving. If you can show that this would lead to significant financial loss, it may be more readily accepted by the court. However, the loss of employment does not amount to exceptional hardship by itself.
- Impact on dependants, such as family members who rely on you for transport, care or financial support.
- Adverse effects on employees or a business, where the driver’s disqualification would put others’ jobs at risk.
- Inability to access medical treatment or care, particularly if you live in a rural area where alternatives are limited.
As we have noted, it is vital to work with a solicitor when arguing exceptional hardship. The consequences for defending a driving offence in a formal court hearing can be severe if you are unsuccessful. It will often result in a stricter punishment than you would have received if you had accepted the fine and penalty points in the first place. As such, your solicitor needs to be involved throughout the entire process if you aim to mount a successful exceptional hardship argument in your defence.
How Do You Claim Exceptional Hardship?
If you are facing a potential ban and want to make an exceptional hardship application to the court, you should start the process as soon as you become aware that you are facing a totting up disqualification. When you instruct a solicitor to support you and protect your driving licence, we will notify the court that you intend to plead exceptional hardship.
We will work with you to produce evidence to the court that supports your specific exceptional hardship argument. This might include employment letters, financial records or witness statements, depending on the nature of the hardship you are relying on for your defence.
In many cases, you will be required to testify under oath, and we will prepare you for a court appearance, usually in the Magistrates Court. You must give oral evidence and may be cross-examined by the prosecution, so it is important that you be well prepared and ready to speak. Our goal is to prove the claim of exceptional hardship on the balance of probabilities, meaning that we must persuade the court that exceptional hardship is more likely than not to occur.
If the court accepts the argument, it may choose not to impose the disqualification, or to reduce the length of the ban.
Are There Other Defences Available?
In some cases, you may be able to rely on another defence to the underlying conviction that resulted in the totting up ban. For example, if you were caught speeding but can show that the speed camera was not calibrated correctly, or were convicted of drink driving but can show that there were procedural errors in how evidence was handled, this can be a stronger defence than exceptional hardship. Additionally, if the points pertain to driving without insurance or failing to provide driver details, we can explore possible arguments and defences, before going down the route of exceptional hardship.
It is important to note that if you are facing a second totting up disqualification because you received an additional 12 or more penalty points within three years, you cannot rely on the same argument based on the same facts. As such, your defence may take a different approach in these cases if it is the only way to avoid a driving ban and protect your licence.
If you have previously relied upon an argument for exceptional hardship within the past three years, you cannot re-advance the argument on the same grounds within that three-year period. In this instance, it is important to discuss with a motoring offences expert, who can consider your grounds and determine whether there are new grounds in which you can make the argument.
Whatever your situation, get in touch with the motoring offences experts at JMW to learn more about avoiding disqualification on the basis of totting up and successfully mounting an exceptional hardship argument in your defence. Call us on 0345 872 6666 or use our online enquiry form to request a call back at your convenience.