Exceptional Hardship Defence

Section 35 Road Traffic Offenders Act 1988 prohibits a driver from accumulating 12 or more penalty points on their driving licence within a three-year period. This three-year period spans from offence date to offence date. The conviction date is irrelevant.

If you receive a Court summons and are at risk of 12 or more points on your driving licence the Magistrates must consider disqualifying you for a minimum period of six months. This is sometimes referred to as a “totting ban”. The minimum period is extended to 12 months if you have previously served a penalty points disqualification in the three years preceding.

Possible routes to avoiding a minimum six-month disqualification are as follows:

  • 1. Successfully defend the allegation before the Court;
  • 2. Successfully argue Special Reasons to avoid penalty points;
  • 3. Request a short discretionary ban as an alternative to the points; or
  • 4. Successfully argue that “Exceptional Hardship” would be caused by serving a S35 driving disqualification.

If you have no defence or special reasons argument then our expert team will work hard on your behalf to prepare a robust exceptional hardship argument and present this to the Court.

To successfully argue that exceptional hardship would be caused by a disqualification the consequences must be significant. The very nature of punishment involves some inconvenience or hardship. However, in some circumstances exceptional hardship would be caused and this should be carefully considered, particularly if the hardship is caused to those other than the defendant.

In order to successfully argue Exceptional Hardship it will be necessary to attend Court. A Court requires a defendant to be present when they are advised that they must not drive for a period of time, to ensure that there is no risk of the defendant committing a further (very serious) offence of driving whilst disqualified.

You will need to put the Court on notice that you intend to make an Exceptional Hardship argument and provide evidence to support your argument. We suggest obtaining supporting letters from those who will be affected, as well as relevant documentary evidence to strengthen your case.

If the Magistrates feel hardship would be caused by a lengthy disqualification they have the discretion to either reduce the period of the ban or not to impose the ban at all. If the Magistrates find Exceptional Hardship and do not impose any disqualification then you would be free to continue to drive. However, you would be in a precarious position going forward as you would have 12 (or more) points on your driving licence. These points will be valid until the oldest points expire (three years from the date of the offence). The danger therefore is that you commit a further offence, which then places you back in the same situation, and you would be unable to raise Exceptional Hardship on the same grounds for a 3-year period.

If the Magistrates partially find Exceptional Hardship and decide to disqualify for a lesser period than the six months this has the benefit of “wiping the slate clean“. Serving a section 35 disqualification (totting ban) of any length has the benefit of removing all points which have led to the ban. Therefore some clients would favour a short disqualification, with a period of inconvenience, which has the benefit of cleaning penalty points from the licence.

Our team of motoring lawyers are genuine experts in dealing with all types of road traffic offences and will ensure that your case is thoroughly prepared and presented in the best possible light.

  • We are specialist motoring defence solicitors, based in Plymouth in the South West. We provide expert legal advice and representation to clients both across Devon and Cornwall and nationally. Contact a member of our motoring legal team for an initial discussion about any road traffic matter.**