Dr Monica Bijlani v Medical Express (London) Ltd

A lease user covenant requiring premises to be used by a fully registered dental practitioner prevents use by a dentist whose registration has been suspended. That applies to cosmetic Botox consultations and treatments as well as dental treatment, even if Botox may lawfully be administered by an unregistered person outside the lease.

Acceptance of rent waives forfeiture only for breaches occurring before affirmation of the lease. Continuing breaches after the last accepted rent may support forfeiture. Relief from forfeiture remains discretionary and may be granted on conditions addressing future breach, payment and reputational risk.

The claimant occupied a Harley Street room under a 20-year sub-underlease containing a permitted-use covenant. She was suspended by the General Dental Council but continued providing cosmetic Botox treatments and, on one occasion, replaced a patient's dental crown. The defendant served two notices under section 146 of the Law of Property Act 1925.

The claimant sought declarations that she had not breached the lease, or that forfeiture had been waived, and alternatively sought relief from forfeiture. She also claimed declarations concerning windows and balconies, use of a communal waiting room and CCTV-related data processing.

1. Construction and breach. The lease was construed objectively, considering the language of the user covenant, the lease as a whole, its purpose, the surrounding circumstances and commercial common sense. The requirement that the premises be used by a person who was fully registered with the General Dental Council required an ability to practise as a dentist. Under section 33(1) of the Dentists Act 1984, a person whose registration was suspended was treated as not registered. The claimant therefore breached the lease by using the premises while suspended.
2. The breach was established whether the treatment was dental or cosmetic. The court found that the claimant had replaced the patient's crown, but regarded that as an isolated incident. It found that Botox injected to relax jaw muscles was not dental treatment in the particular circumstances, although the claimant was prohibited from using the premises for Botox work while suspended in any event.
3. Waiver. Acceptance of rent until the end of January 2022 waived forfeiture for breaches occurring up to that date. It did not waive continuing breaches occurring afterwards. No later acceptance of rent or other affirmation was proved before the notices.
4. Relief from forfeiture. Applying section 146(2) of the Law of Property Act 1925, the court balanced the seriousness and persistence of the breaches, the claimant's personal suitability, potential reputational harm, the absence of proved material damage, the isolated nature of the dental treatment and the claimant's lack of clear appreciation that Botox work was prohibited. Relief was granted on conditions, including an undertaking or injunction preventing use during suspension and payment of sums due.
5. The defendant had breached the lease by preventing effective use of the windows and balconies, but the waiting-room claim failed. The CCTV declaration was granted because the camera was installed to monitor attendance at the claimant's room rather than for the stated toilet-monitoring purpose. The defendant received 95 per cent of its costs on the indemnity basis.

The judgment records earlier county court proceedings in which a counterclaim concerning balcony use was struck out for non-payment of a fee. That matter was not adjudicated on its merits. The present proceedings were determined at first instance by the High Court.