Small business owner wins ‘exceptional hardship’ appeal against driving ban



Sheriff Appeal Court
Sheriff Appeal Court

The owner of a small business who was banned from the road for six months after being caught driving while using a mobile phone has successfully appealed against his disqualification.

The Sheriff Appeal Court allowed the appeal after the appellant argued that his disqualification from driving would lead to “exceptional hardship”.

Sheriff Principal Craig Scott QC and Sheriff Sean Murphy QC heard that the appellant Martin Waine pleaded guilty to a charge of driving a motor vehicle when using a hand held mobile telephone and was disqualified from driving for a period of six months under section 35 of the Road Traffic Offenders Act 1988 via the “totting up” procedure, after a Justice of the Peace found that exceptional hardship had not been established following a proof to determine the issue.

At the proof, the appellant and his wife gave evidence, which was not challenged by the Crown and there was no suggestion to the effect that the JP found any of the evidence led to lack credibility or reliability.

At the heart of the exceptional hardship argument lay the undisputed fact that the appellant owned a small business with some ten employees, which involved the manufacture and transport of bespoke industrial glass.

The court was told that the appellant, who lived 11 miles outside Dunoon in a relatively remote location, was the contract manager while his wife acted as the accountant for the company, whose factory premises were located in Lancashire.

He used his car to travel between 1,500 to 2,500 miles per week to Lancashire, to meetings in London and to other parts of England, as well as to transport heavy glass samples.

Standing the rural location of his home and the location of the factory, when both these features were taken along with the nature and extent of his business travel, it was said that the use of public transport, to put it at its highest, would be of “extremely limited value” when it comes to the operation of the business.

The court also heard that the appellant’s role was “key to the business”, as without him being able to travel to meetings and absent his specialist knowledge and experience, the company would be “severely disabled” and the survival of the business would be placed in “serious jeopardy”.

Disqualification would also have a “huge effect” on the appellant’s personal circumstances, as the appellant and his wife risked losing their livelihood and would struggle to meet their mortgage commitments amounting to £700 per month.

However, having considered the evidence and the related submissions advanced on behalf of the appellant, the justice found that exceptional hardship had not been established, concluding that “a combination of public transport, taxis and perhaps the services of a driver, combined with overnight stays as necessary would enable him to attend many if not all of the meetings he needed to attend”.

On appeal, the argument advanced by counsel on behalf of the appellant was that the conclusion arrived at by the justice was “not borne out” of the unchallenged evidence provided by the appellant and his wife.

The evidence “clearly demonstrated” that the appellant needed a driving licence to perform his job.

Taking the evidence as a whole, including the remote location of the appellant’s home and the need to transport heavy items, it was submitted that, in reality, the use of public transport or taxis was “out of the question”.

In seeking to have the disqualification quashed, counsel for the appellant advanced a number of submissions designed to persuade the court that the justice had “erred” in failing to hold that exceptional hardship had been made out on the evidence led at proof.

In the circumstances, the appeal sheriffs agreed with the submissions advanced on behalf of the appellant.

Delivering the opinion of the court, Sheriff Principal Scott said: “It seems to us that the Justice’s conclusion, as is suggested in the note of appeal, was irreconcilable with the unchallenged evidence presented to the court to the effect that the business was unlikely to survive.

“The result would be a loss of employment not just for the appellant but for all ten of the staff of a small and specialised company which depended upon his expertise for its survival.

“Accordingly, we have determined that the existence of exceptional hardship ought to have been held established and with that in mind we have quashed the disqualification of six months.”

© Scottish Legal News Ltd 2021