Avoiding A Totting Up Driving Ban And Losing Your Licence By Arguing Exceptional Hardship In The Uk


Most driving offences do not mean the risk of an immediate ban but bring penalty points. "Totting up" is the adding together of penalty points permitting the courts to hand down a driving ban to serial road traffic offenders who commit between two and four offences.

If you are at risk of reaching a total of 12 or more valid penalty points on your UK licence by committing a further motoring offence a fixed penalty notice cannot be implemented. Instead the Magistrates Court will summons you to attend a hearing where the presumption is that the court should ban you from driving for a period of six months.

A totting up 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.

The ban is not automatic, but the court will be strongly inclined to give you a driving ban. It is up to you to persuade them not to do so. You can do this by bringing forward a successful exceptional hardship argument.

Bringing a successful exceptional hardship argument

An exceptional hardship argument requires you to persuade the court to use its discretion to over-ride the points permitting you to avoid a ban because of the "exceptional hardship" your driving ban would cause to you (usually on health grounds) or to others who would suffer if your driving licence was taken away.

The points will still be on your licence but you will still be allowed to drive. However should you make a successful exceptional hardship argument you will be unable to use the same argument again for three years. (Should this occur you will certainly need detailed legal advice).

Although most drivers understandably treat the court with some trepidation the court hearing does give you a chance to put your case.

Arguing exceptional hardship

It is not enough to argue that losing you licence might make matters a little difficult or inconvenient for you. The hardship must be "exceptional".

"Exceptional hardship" as a defence is contained in section 35(4)(b) of the 1988 Road Traffic Offenders Act which does not clearly define the phrase but leaves it open to the court for interpretation under the particular facts of the case.

That said the exceptional hardship is a matter of fact and degree in each particular case and has been held by the Courts to be something "out of the ordinary".

The Court is allowed to take into consideration exceptional hardship to the driver but particularly will look at how other people affected by the disqualification such as children and spouses. Loss of employment is rarely enough to make a successful exceptional hardship argument without reference to the welfare of others, including finances, prospects and family circumstances.

Arguments which might be considered are:

Inability to get about due to severe health problems

Specific loss of income or hardship or risk of loss of employment for others, (employer or employee or family members) if the driving licence is taken away and a ban imposed

Societal loss: 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 or employment, but you will need a great deal of supporting information, a well presented case and sympathetic magistrates

In each case you will need:

to present a set of facts proving hardship that the magistrates accept to be exceptional

to make a persuasive case to the magistrates that hardship will result

supporting evidence for every fact you choose to present

some luck and a sympathetic magistrates bench