Totting Up and Exceptional Hardship - Is penalty points disqualification avoidable?

The rules on totting up and exceptional hardship state that when a driver accumulates 12 or more penalty points in a 3 year period, he or she is usually subject to a ban lasting a minimum of 6 months. These provisions, originating in 1972 legislation, are found in Section 28, Road Traffic Act 1991 (and also the 1988 Road Traffic Offenders Act). In certain circumstances, the court has a discretion not to impose a ban.

Police officer and a police car on a highway

A ban can mean the threat of losing one's job, and this can seem unfair when the offences can involve driving just a few miles over the speed limit or even worse, for a paperwork offence. These cases are hard, but not impossible, to win. We fight to keep our clients' licences, and prepare our legal argument arguments meticulously so that we can keep them on the road. Our record in this area is outstanding.

Our motoring solicitors' case study

Any motoring lawyer can claim to have expertise in different types of motoring case. We have included here a case study to give some idea of how we prepare our cases.

Case Study

Our client was the owner of a medium industrial cleaning business. He had admitted a final speeding offence on the day of the hearing to put him at 14 points

The court would have been unwilling to consider his own personal circumstances as a reason to not disqualify him from driving. The fact that he would risk losing the business if he could not visit customers personally was not a good enough reason in itself to get the result.

In this totting up case, we produced evidence relating to the effect that his inability to drive would have on both his employees and his customers, some of whom he had long standing relationships with. A package of references was put together by us and handed to the Magistrates at the opening of the court, so that before our Barrister even began to talk, some of the groundwork had been well laid for a successful outcome.

Our application for non-disqualification was accepted and he was allowed to keep his licence despite the endorsements.  Verdict: Licence Retained by Client

The Law

The Law applies to holders of a full driving licence. In the case of New Drivers, as defined by the Road Traffic , the relevant number of points is 6 points for the first two years of holding a full licence, also including any endorsements   still active whilst holding a provisional licence or before any licence has been held. A court hearing that is triggered when a person accepts a fixed penalty of three points when he or she has 9 points on his licence. The defendant is summoned to court to give reasons why he should not be disqualified.

These rules apply to offences committed within a 3 year period. The dates when the points are awarded are not considered. So if points have expired since the offence, but before the court proceedings, then the disqualification is still applicable. However, this means that it is also necessary to look at the date of the first relevant offence, not when points were awarded, to check that the points do span over a period of less than 3 years. If not, then the totting up provisions do not apply.

The disqualification is for a minimum of 6 months, although the magistrates have a discretion to increase it if they think it is necessary. This is, however, relatively rare. If the defendant has had another disqualification of over 56 days in the last 3 years, then a totting up disqualification is for a minimum of 12 months. If he or she has had two disqualifications in the last 3 years, then the minimum disqualification is for 2 years.

How does Exceptional Hardship work?

The court can take into account hardship that imposing a ban will cause, but only if it can be classed as Exceptional Hardship. In reality, this means either hardship that affects the licence holder in a way that goes beyond normal hardship, or alternatively unpleasant consequences affecting innocent parties.

Examples of what a court will consider to be Exceptional Hardship might include:

  • A restriction on mobility for a driver with severe health problems.

  • A threat to the job stability of employees if a manager, business owner or key employee is unable to fulfill their role

    (other work related effects may be relevant).

  • If the driver works in a career with a high level of importance to the health or safety of the public, or a specific group of people.

  • Loss of a career, if supported by relevant supporting information and presented well, might be enough, but not without the right preparation, good advocacy, and sympathetic magistrates. Loss of employment, on its own, will usually not amount to grounds to keep the licence.

What makes a good Exceptional Hardship Argument?

In a totting up hearing, there is no single key to success in the legal argument. A combination of several elements is required to have a chance of saving the driving licence.

These include:

  • A set of facts which can be presented as exceptional

  • Excellent, persuasive advocacy

  • Good ground work with the client on the issues

  • Supporting evidence for every fact mentioned