When a driver accumulates 12 penalty points within a 3 year period the totting up procedure is engaged. Under these circumstances, Court guidelines state that a disqualification from driving should be imposed for at least 6 months.
Although in the case of the totting up procedure disqualification is viewed as compulsory, it is at the discretion of the Court. To avoid a driving ban, the Court could be persuaded that the defendant’s circumstances would mean that a totting up disqualification would amount to exceptional hardship.
A motorist could avoid a 6 months driving ban if the Court accepts a submission of exceptional hardship. There is no legal definition of exceptional hardship, however it is accepted that hardship must be beyond what would be reasonably foreseeable. Mere inconvenience will not be sufficient. The severity and degree of hardship must be established and the Court will assess the seriousness of the implications of a six months ban from driving.
The Court will also consider the effects of a disqualification on other people. These third parties are effectively innocent of any offence and would technically be punished irrespective of this if the driver were to be disqualified for totting up. This can be a very important factor that could mean exceptional hardship would be suffered.
The loss of a person’s employment will not automatically amount to exceptional hardship as it can be seen as a reasonably foreseeable outcome. However, the implications that arise from loss of employment such as the prospect of bankruptcy, and defaulting on a mortgage and the effect on others could amount to exceptional hardship.
An exceptional hardship argument must be made in Court, which can be a daunting and frightening experience for those who are unfamiliar with the Legal System.
The procedure varies between different courts. In some cases the defendant may be required to take the oath and give evidence of their circumstances before the Magistrates or judge. This evidence could be cross-examined by the Prosecutor, Magistrates or Judge.
In most cases where the driver is represented by a specialist motoring law firm, an advocate will present the evidence for the application in their submissions on behalf of the defendant. The defendant would then simply be asked on oath to confirm the truth of those submissions.
In order for an exceptional hardship argument to be accepted there must be comprehensive evidence of the hardship that will be suffered. The standard for what is considered exceptional hardship is set relatively high, it is therefore vital that an all-inclusive approach is taken to preparing the case in advance and presenting it to the Court.
The outcome of an unsuccessful exceptional hardship argument would result in the driver being banned from driving immediately. If the person wanted to appeal, it could take weeks for the case to be heard at the Crown Court. It is therefore vital that the argument is prepared and presented properly at the first opportunity.
At Forster Dean Solicitors, our specialist Totting Up Solicitors have been making successful exceptional hardship arguments for years, and know how to identify key evidence to win a case. We take a “no stone unturned” approach to preparing our arguments and will not rest until a case is at its strongest. We take the time to truly understand our clients and those around them in order to present a case to the Court which is totally unique. We have a particular specialism in making exceptional hardship applications and are ready to answer your call day or night. Feel free to telephone 0333 323 1830 today to speak to a specialist totting up solicitor and find out what we can do for you.