Totting Up - Disqualification by endorsement of 12 penalty points and the rules on Exceptional Hardship

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 under what is commonly called called the "totting up" provisions. 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.

Case Study

Our client was the owner of a medium industrial cleaning business.

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.

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, the groundwork had been well laid for a successful outcome.

Our client had admitted a final speeding offence to put him at 14 points but 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 (New Drivers) Act 1995, 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.

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 concept of Exceptional Hardship

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 shown to amount to exceptional hardship, but not without the right preparation, good advocacy, and sympathetic magistrates. Loss of employment, on its own, will usually not amount to grounds for showing exceptional hardship.

What makes a good Exceptional Hardship Argument?

There is no single key to success in an exceptional hardship argument. A combination of several elements is required in order
These include:

- A set of facts which can be presented as exceptional
- Good, persuasive advocacy
- Good ground work with the client on the issues
- Supporting evidence for every fact mentioned

Is a Lawyer Required?

As with most driving cases, where there is a risk of losing your driving licence, it is usually ideal to have a lawyer present. The reality is that the necessity of keeping your driving licence has to be weighed up against the cost incurred in instructing lawyers. If losing your licence means losing your job, then the decision should be an easy one.