Tolo had been required to attend court for consideration of a penalty points disqualification. Like so many other motorists he had accumulated 9 penalty points for offences committed within 3 years of each other; he had accepted fixed penalty notices for speeding on 3 occasions. But now he realised he had been caught again! He had only exceeded the speed limit by a few mph but, this time, his total would tally 12 or more penalty points. He realised that he faced a 6 month ban unless he could establish in court that he would suffer from what is termed ‘exceptional hardship’. He could not afford to lose his driving licence as he and his family depended upon it.
Tolo's First Step
Tolo thought he needed to find a motoring offence solicitor who could advise him. He made his enquiries and rang me for an initial telephone discussion. I, Sunil Rupasinha, am a motoring offence barrister. I deal with initial calls (as callers usually want authoritative answers during the first call). I listened to a summary of his situation. Essentially his account was that he had a dependent wife and children, a mortgage and no way of meeting his commitments if he lost his driving licence. Tolo was told that my initial and provisional impression was that the court might well not find ‘exceptional hardship’ in his case simply because the situation he was describing was so common. However, it was explained that that was simply an initial impression based upon the short account he had given. (I do not give an optimistic outlook during an initial call unless it is merited.) Tolo had read the Google reviews posted online and so, undeterred, he decided to book a formal consultation as loss of licence would have been a disaster for him and his family. He had to at least try to save his licence.
Tolo travelled to Maidstone for a face-to-face consultation. 2 hours had been set aside to take detailed instructions from him, to answer his questions, and, to advise him. It became apparent that Tolo had a fulltime job, a part time job and an occasional job. As his was the only income coming into the household it was crucial that he retain his licence as its loss would have meant the loss of all 3 sources of income upon which he and his family relied. As is sometimes the case, during our discussions Tolo mentioned something he hadn’t mentioned during the initial call: he said that one of his children was suffering mental health problems and that this condition was undiagnosed. It hadn’t occurred to him that this could be relevant. Formal legal advice was given that the loss of income alone and the fact that his family was entirely dependent upon that income might well be insufficient to persuade the court that loss of his licence would cause ‘exceptional hardship’. However, the issue of his child’s mental health and the effect upon her of loss of his employment might, dependent upon further analysis of the condition, and, together with all the other factors, persuade the court that ‘exceptional hardship’ would be caused.
Preparation for Court
Tolo was advised to obtain letters from his 3 employers and given an outline of the desired content. He was also advised of the type of documentary evidence that would be required in relation to his child. Over the next few months documentation was obtained. Several of the references, upon advice, were amended (so that they would be of maximum effect in court). Tolo had been advised that he should expect to have to give evidence upon oath as to his situation and the potential effects of a 6 month driving disqualification. He was advised and prepared for the type of questions that he could reasonably expect to have to answer (both from me and the court). This was critical as Tolo had never given evidence in a court before.
On the day in question the court had only listed motoring cases including others listed for penalty points disqualification hearings. By attending court early I was able to listen in to other cases and see the approach the court was taking. Before Tolo’s case was called on I advised him what to expect based upon what I had seen. As it turned out this enabled Tolo to give his answers more effectively. I then made submissions to the court before the magistrates retired to consider their decision (again altering my emphasis slightly to take account of the comments the court had made in an earlier penalty points disqualification case that day).
The court found that ‘exceptional hardship’ would indeed be caused if they banned him. It was stated in open court that he had only just got his case across the line and that the court had taken into account all of the constituent elements of the Defence case. Tolo was extremely relieved commenting,
‘It is clear that all of the effort into ensuring that every aspect of the case was prepared as effectively as possible plus the guidance I was given as to how to conduct myself in court were critical to winning this case. I am extremely relieved. Thank you for all that you have done.’
Loss of licence would be considered by millions of people as unthinkable. However, to succeed with an ‘exceptional hardship’ submission the Defence has to prove that the hardship in any given case would be ‘exceptional’. Thus common cases in which a breadwinner will lose his income and a family will suffer don’t necessarily meet this standard (as it is such a common situation). For this reason it is critical that cases are prepared thoroughly and presented expertly in order to maximise the chance of success. Without face to face consultations critical issues could be overlooked which might just be the factors that could, potentially, lead to winning a case in court.
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