Exceptional Hardship Scotland

12 Penalty Points Driving Ban

It is common knowledge that accruing 12 penalty points within a three year period (running from date of offence to date of offence) results in a minimum 6 month period of disqualification unless the Court is satisfied that exceptional hardship would be caused to the licence holder or a third-party who depends upon their continuing ability to drive.

It is important to note that 'totting-up' operates from date of offence to date of offence. The Court will therefore consider the penalty points on a driver's licence at the time of the commission of the latest offence as opposed to what remains on the licence when the case reaches Court. This means that even if some points have expired from a driving licence by the time the latest case reaches Court they will still be taken into consideration by the Court.

What is Exceptional Hardship?

Exceptional hardship is essentially mitigating circumstances that are exceptional and would cause hardship to the driver personally or to others who depend upon their driving entitlement (e.g. a relative or an employer). Hardship need not extend to anyone other than the driver although hardship alone shall not be sufficient. For example - loss of employment alone - and all that flows from that (being unable to meet rent or mortgage repayments) - is not ordinarily sufficient to avoid a disqualification but if the effects of the loss of employment extended to others then there may well be a case worth arguing.

Examples of Exceptional Hardship

Each case depends upon its own facts and circumstances. Below are some examples where the Court has accepted that exceptional hardship would result if the driver was to lose their licence through 'totting-up'.

• Being an employer whose business' survival depends upon their ability to drive;
• Being an employer whose employees would lose their jobs if the employer was to lose their driving licence;
• Advancing age of driver;
• Likelihood of obtaining future employment
• Working unsociable hours;
• Living in an area poorly serviced by public transport;
• Regularly having to drive a sick child to hospital, a previous child having died;
• Being a single parent with disabled children; and
• Nature of employment and employment history - e.g. taxi drivers, bus drivers, HGV drivers may have more to lose than a person who uses their licence to commute to and from their place of employment

Whilst some of the factors above may not be sufficient alone, the Court will often consider the totality of the circumstances when determining whether or not the legal test has been met.

A civil standard of proof is applied to exceptional hardship proofs i.e. on a balance of probabilities. Put simply: Is it more likely than not that exceptional hardship would be caused if the driver was to be disqualified under the 'totting-up' provisions?

If the Court is satisfied that exceptional hardship has been established the driver's licence will be endorsed with penalty points, however, they will not be disqualified (e.g. a driver could therefore drive around on 15 points).

How Long Does a 'Totting-Up' Ban Last?

Ordinarily a ban lasts for a minimum of 6 months following which the licence is cleared of all penalty points when reissued. This period of disqualification will increase to a minimum of 1 year if the driver has had a previous disqualification of at least 56 days in the three-year period immediately preceding the date of commission of the latest offence (not the date of conviction). The period is increased to 2 years if there have been two periods of disqualification within the same three-year period preceding the date of commission of the latest offence.

Can I Argue Exceptional Hardship Again?

Drivers cannot rely on the same mitigating circumstances more than once in any three-year period. It would be competent to put forward mitigating circumstances based upon family circumstances on one occasion and on grounds of employment on a separate occasion within the same three-year period, although in practice, this would be an extremely rare occurrence.

A View From The Experts

Ronnie Simpson is a solicitor at leading Scottish Road Traffic Law Firm Michael Lyon Solicitors Ltd, he says:
"Exceptional Hardship Proofs are often won - or indeed lost - based upon the state of preparation. These cases can be complicated and the stakes are high. It is easier now than at any time in the past to accrue 12 penalty points within a three-year period and the experience of your representation can be the deciding factor in whether or not you retain your driving entitlement. I have appeared in hundreds of Proofs both as a Procurator Fiscal Depute and more often as a road traffic expert and that experience is crucial in knowing how to present these cases to the Court. My Firm - Michael Lyon Solicitors Ltd - successfully overturned a decision of the lower courts in what is now widely acknowledged as the most important Exceptional Hardship case of the last decade Waine v PF Glasgow. If your livelihood or family commitments depend upon your ability to drive then you should contact a road traffic lawyer to discuss your options."

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