Do I Need a Solicitor for Exceptional Hardship?

Kang & Co Solicitors

What is exceptional hardship?

Exceptional hardship is an application specifically tailored to an individual’s personal circumstances and is only advanced if a motorist is at risk of a ‘totting up’ driving disqualification. A totting up driving disqualification is imposed if a motorist accumulates 12 or more penalty points on their licence within a three-year period. The disqualification imposed for ‘totting up’ must be for a minimum period of 6 months.

If you are at risk of a totting up disqualification, you will be required to attend Court in person should you wish to attempt to avoid the ban. An exceptional hardship application cannot be submitted via post. It must be advanced at Court in person and ideally by an experienced barrister or solicitor.

How is the application put forward at Court?

It is always worth instructing a specialist law firm to prepare and present this application on your behalf. In Court, the application is advanced orally to the Magistrates’ or the District Judge and is usually corroborated by supporting evidence/letters from partners, relatives and employers/employees.

The prosecutor and the Court have the right to cross examine you on your application. They will usually ask you questions to determine whether there are alternative ways of accommodating the 6-month totting up disqualification in order to deem how much impact the disqualification would have upon not just you but those around you. If it becomes apparent that there are clear alternatives which allow you to accommodate the disqualification, it is unlikely the application will be successful.

However, if you do not attend Court and advance exceptional hardship in attempt to avoid the totting up ban, it is almost inevitable that you will receive the minimum 6 month ban therefore, it is always worth advancing exceptional hardship, regardless of how strong you believe your application to be.

Some examples of what may amount to exceptional hardship

The bar is set relatively high as to what the Court would consider to be exceptional hardship therefore, it is essential that the application is drafted and presented in a very specific manner by a solicitor who is experienced in this field.

It is imperative that an exceptional hardship application emphasises exceptional hardship and not just hardship. The Court will not consider how the disqualification will prevent you from attending the gym, social events or completing the weekly shop, as those circumstances are not considered exceptional. The Court also do not consider the loss of job alone as exceptional hardship.

It is important to seek expert legal advice regarding drafting the exceptional hardship application as this can assist in identifying grounds that would potentially qualify for exceptional hardship and those that would not.

Examples of what may amount to exceptional hardship may include being unable to assist your elderly mother, who has been diagnosed with a health condition, get to and from regular hospital appointments to assist with her health and wellbeing. This would potentially be considered as an exceptional hardship circumstance, if you are the only person in your mother’s life who could assist with this duty.

Another example of what may amount to exceptional hardship may include the loss of your job resulting in financial hardship for your family. If you are the sole provider of the household and are considered as the ‘breadwinner’, loss of job due to a driving disqualification may then mean that the household mortgage and bills cannot be paid therefore, leaving you and your family at risk of being homeless.

Supporting evidence for the application

Once your application has been discussed and drafted by one of our lawyers, we will then request that you gather supporting evidence for each ground (point). This may be in the form of supporting letters from the people who would be affected if you were to be disqualified for a minimum of 6 months.

Examples of this may include a letter from your employer confirming if you were to be disqualified, you would lose your job or if you own a business, this may be a letter from one of your employees confirming they would potentially lose their job if you were to be disqualified and the business had to make cutbacks.

Why robust presentation at court is vital for success

Robust presentation of such applications at Court is vital for success as exceptional hardship applications are complex, emotional applications. Our solicitors and barristers are very experienced in advancing such applications and they know how to tailor their approach based on the specific bench on the day of the hearing. It is vital that the application is advanced in a robust manner in order to convince the Magistrates’ or District Judge that your circumstances amount to exceptional hardship.

Can you represent yourself at court?

You do have the option of representing yourself at Court for an exceptional hardship application however, this does somewhat limit your chances of success. Advancing such applications to the Court and a CPS lawyer can be daunting when it is not something you have experienced before. Furthermore, experience is key in advancing such applications as you may not be aware of what would or would not be considered as exceptional hardship by the Court. 

What happens if you are successful at Court?

If you are successful with an exceptional hardship application, the penalty points considered by the Court for the offence in question will be endorsed onto your licence however, you will avoid any disqualification.

This may mean that you walk out of the Court building with over 12 penalty points on your licence therefore, you would have to drive very carefully going forward as any further motoring offence would result in being at risk of a totting up disqualification again. Be aware that you cannot raise exceptional hardship on the same grounds more than once within a three-year period therefore, it is very difficult to be successful when advancing exceptional hardship for the second time.

What happens if the application fails?

If the application is unsuccessful, the Court will impose an immediate totting up disqualification of at least 6 months. This will have immediate effect meaning you cannot drive away from the Court building following your Court hearing. We would always advise making alternative travel arrangements on the day of your Court hearing to avoid facing any issues should you be disqualified.

If you are disqualified for ‘totting up’, once the disqualification has concluded, you do not have to take any further tests before you can drive again. The disqualification also wipes your licence clean of any penalty points meaning once the disqualification has concluded, you will have a clean licence.

Appealing the Magistrates Court decision

If you are unsuccessful, you have the right to appeal the Magistrates’ decision in not granting exceptional hardship. An appeal of this nature is solely against the decision made not to grant exceptional hardship. You cannot appeal the conviction as exceptional hardship is advanced following a guilty plea.

If you choose to proceed with an appeal, the appeal application must be submitted within 15 business days of your sentence hearing. You will then have the opportunity to attend an ‘interim’ hearing where a request would be made that the totting up ban imposed at your sentence hearing, is suspended pending your appeal hearing. If the Magistrates’ grant this request, this means you can continue to drive until a decision is made on sentence at the appeal hearing.

The appeal hearing will usually take place a few months after your sentence hearing. A barrister or solicitor would advance the exceptional hardship application again however, this time it would be advanced to a Judge in the Crown Court. The Judge would then decide whether they agree with the Magistrates’ original decision not to grant exceptional hardship, or whether they take the view that your circumstances actually do amount to exceptional hardship. If is it decided that your circumstances do amount to exceptional hardship, your application would be granted and you would avoid the totting up ban.

An appeal essentially gives you another chance at being successful with the application as it is presented to a different bench.

Do you need a solicitor for exceptional hardship?

It is always worth seeking legal advice from a solicitor to assist with drafting the exceptional hardship application as the applications require specific knowledge and experience to give you the best chance of being successful.

As you are unable to advance exceptional hardship more than once in a three-year period (on the same grounds), it is vital that the application is drafted and presented at a very high quality as you may not get the opportunity to put those grounds forward again.

Attending Court is often a daunting experience for many therefore, knowing you have received expert legal advice from a solicitor and are in company of an experienced solicitor or barrister at Court, can often assist with putting you at ease on the day of your hearing.

If you are at risk of a ‘totting up’ disqualification or you would like more information on exceptional hardship applications, please contact our team for a free no obligation telephone call and we shall let you know how we can help.