Alan Cameron | Senior Associate

Avoiding Totting up disqualification

Achieving 12 points within a 3 year period does not necessarily mean that you will lose your licence.

The Road Traffic Offenders Act 1988 states that a driver who has obtained 12 or more penalty points within a 3 year period will be disqualified for a minimum period of 6 months, or for 1 or 2 years dependant if the driver has been subject to previous disqualification(s) in the past 3 years. A driver facing totting up disqualification is afforded by the Act an opportunity to mitigate the consequences and keep their licence notwithstanding the fact that they have 12 or more points.

In order for a court to allow a driver to maintain their licence, or be disqualified for a shorter period than the minimum, they must establish the hardship from losing their licence is classed as exceptional. Hardship upon yourself is not necessarily sufficient, although the court has held in truly exceptional and severe circumstances hardship on yourself can establish exceptional hardship, but it is common that hardship must stretch to others to be classed as exceptional. The legislation does not define what is to be classed as exceptional hardship but the decisions of the court are to be used as guidance of what the court will accept.

Hardship following upon a possible disqualification has been held as exceptional by the court in the following examples:

  •  hardship to immediate family
  •  hardship to employees
  • hardship to employers
  • hardship to contractors
  • hardship to sick or elderly relatives
  • hardship to creditors
  • living in remote location
  • ability to complete charity work

These grounds are not exhaustive and actual hardship is not necessary, but the risk of hardship. The above grounds are not mutually exclusive but anybody arguing these grounds will be able to persuade the court more easily if they rely on more than one ground. However, a person can only use the ground once in a 3 year period and will be barred from relying on the same ground again in that period.

Presentation is all important as well as the grounds sought to establish exceptional hardship with each case being considered on its own merit. Unlike other criminal cases the burden or onus of proof lies with the driver and not with the crown. The test used by the court is not to establish exceptional hardship beyond reasonable doubt but on the balance of probabilities. The evidence that the court would expect to establish exceptional hardship will include witness testimony, sworn affidavits, signed letters and documentary evidence.

If you are facing disqualification this should not be accepted without further advice. To discuss your case and personal circumstances click here to contact us online or call 03332221855 to speak to a member of our specialist team.

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

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