Dr Monica Bijlani v Medical Express (London) Ltd

The court construed a user clause in a sub-underlease requiring a tenant to be a "fully registered" dentist and held that a dentist suspended by the General Dental Council was to be treated as not registered for the purposes of the lease: continuing to use the premises for Botox consultations/treatments and any dental practice while suspended breached clause 28. The relevant statutory provision (Dentists Act 1984 s.33) and ordinary contractual construction principles were applied in light of the building's clinical character and the wording of clauses 1.1 and 28.2.

The landlord's acceptance of rent until the end of January 2022 waived forfeiture for breaches up to that date but did not waive the right to forfeit in respect of continuing breaches thereafter. The court exercised its discretion under section 146(2) of the Law of Property Act 1925 to grant relief from forfeiture subject to terms (including prohibiting use while suspended and payment of sums due), having balanced the risk of reputational harm, the deliberate but arguably understandable nature of the breach, and the limited evidence of actual harm.

The claimant's other assertions were mixed: a declaration of breach was granted in respect of restricted use of windows/balcony (a minor breach), the claim that patients were prevented from using the shared waiting room was dismissed, and a declaration was granted limited to data collected by a CCTV camera which the court found was improperly positioned to monitor the claimant's room.

Background and parties: The claimant leased a first-floor consulting room at 117A Harley Street from the defendant by a sub-underlease dated 21 May 2014. The lease permitted use as a consulting room and the carrying out of surgical/dental procedures only by a "registered dental practitioner" who must "remain fully registered" with the General Dental Council and registered with the Care Quality Commission. The defendant operated healthcare businesses in the building.

Nature of the application: The claimant sought declarations that she had not breached the lease, or that any breach had been waived; alternatively she sought relief from forfeiture. Other claims included declarations about inability to open windows/access balconies, denial of waiting-room use, and unlawful data processing relating to CCTV.

Facts and procedural posture: The claimant was suspended by the GDC in April 2021 (an interim suspension followed by a 12-month substantive suspension in June 2021). The defendant served s.146 notices dated 24 February 2022 and 12 May 2022 alleging use of the premises while suspended, principally for provision of Botox services and, on one occasion, dental work (replacement of a crown) and Botox for jaw pain. The defendant had accepted rent until the end of January 2022 and thereafter withheld rent. The parties led factual and expert evidence on whether Botox administration in the circumstances amounted to dental treatment and on factual details of the patient visit of 9 May 2022.

Issues framed: (i) Whether use of the premises while suspended amounted to a breach of clause 28 (permitted use and requirement to be fully registered); (ii) whether the defendant had waived forfeiture by accepting rent; (iii) if the right to forfeit remained, whether the court should grant relief from forfeiture under s.146(2) LPA 1925 and on what terms; and (iv) subsidiary claims about windows/balcony, waiting-room access and data protection/CCTV.

Court’s reasoning: The court applied established principles of contractual interpretation to give effect to the parties' objective intention, focusing on the ordinary meaning of the lease terms, the contractual context and the commercial purpose of protecting the building's clinical reputation. The Dentists Act 1984 s.33 (treating a suspended registrant as not being registered) supported the view that a suspended dentist was not a "fully registered" practitioner for the lease. On the facts the claimant admitted providing Botox treatments while suspended and the court found, on the balance of probabilities, that she had, on one occasion, re-cemented a crown for a patient. Expert and regulatory material led the court to conclude that the particular Botox injection for jaw pain was not, in the circumstances, dental treatment; however that point was not outcome-determinative because the lease required a fully registered practitioner in any event.

Waiver and relief: Acceptance of rent until end of January 2022 waived forfeiture for pre-January breaches but not for continuing breaches thereafter. In the exercise of the s.146(2) discretion the court granted relief from forfeiture on terms designed to prevent future breaches (injunctions/undertakings and payment of sums due), having weighed the limited evidence of actual reputational or patient-safety harm, the partly inadvertent character of most breaches, and the single more serious incident. The court also granted a declaration of breach in relation to the double-glazing/windows (minor), dismissed the waiting-room claim for lack of proof, and granted a limited declaration as to improperly obtained CCTV data (camera placement) but declined further injunctive relief because the camera had been stopped.

Outcome and costs: Relief from forfeiture was granted subject to terms; a declaration of breach was made about windows/balcony; waiting-room claim dismissed; a limited data-protection declaration granted. The landlord was awarded 95% of its costs on the indemnity basis.

First instance: The court found the claimant had breached the lease by using the premises while her GDC registration was suspended and that the defendant had waived forfeiture only in respect of breaches up to the end of January 2022. The court granted relief from forfeiture under section 146(2) of the Law of Property Act 1925 on terms (including prohibiting use while suspended and payment of sums due), gave a declaration of breach in respect of the windows/balcony, dismissed the waiting-room claim, and granted a limited declaration concerning CCTV data. The court’s rationale balanced the lease construction (requiring a "fully registered" practitioner), the statutory effect of suspension (Dentists Act 1984 s.33), the absence of evidence of actual reputational or safety harm, and the need to prevent future breaches by terms and undertakings.