In the recent case of Bijlani v Medical Express (London) Ltd [2024] EWHC 2246 (KB), the High Court illustrated again that a landlord’s right to forfeit a lease is only a form of security for the tenant’s continuing performance of its obligations under its lease.  If the landlord is not prejudiced by breach of a covenant and the breach is unlikely to recur, then relief from forfeiture may be granted.  Forfeiture should not be used as a way of penalising a tenant for perceived bad behaviour. 

The Background

Dr. Bijlani, the claimant, was a dentist who specialised in implants.  She had been leasing a consulting room on the first floor of 117A Harley Street, London, from the defendant, Medical Express (London) Ltd, since 2014. The lease was for a term of 20 years and stipulated that the premises be used only by “a fully registered dental practitioner for legitimate dental or surgical procedures“.

A dispute arose when Dr. Bijlani’s registration with the General Dental Council (“GDC”) was suspended in April 2021.  Although the case report does not state this, it is a matter of public record that she was suspended in September 2021 and remains suspended until at least February 2025, when the suspension will be reviewed.  Despite the suspension, Dr. Bijlani continued using the premises to provide cosmetic services, including Botox treatments. The defendant issued a notice under section 146 of the Law of Property Act 1925 alleging breaches of the user covenant in the lease, specifically that Dr. Bijlani had used the premises for unpermitted purposes whilst suspended.

The Submissions

The main issue was whether Dr. Bijlani’s provision of cosmetic services during her suspension constituted a breach of the lease.  The Judge found that Dr. Bijlani had believed that she was entitled to carry out such work as anyone may administer Botox, and the GDC has no part in regulating such cosmetic work.  However, the judge found against her in his oral judgment, pointing to the words in the lease that required her “[to] remain fully registered with the General Dental Council, and shall conduct its [sic] practice in accordance with such registration.”

We have not had the benefit of seeing the entire lease, however on the basis of the extract above it seems that the tenant would have been in breach had she done anything in the premises whilst suspended.  Suspension was a breach in and of itself.  However, in granting relief from forfeiture, the court seems to have taken less of a black letter interpretation, allowing relief provided that she carried on paying the rent and did not use the surgery at all during her suspension. 

There was a separate issue raised of the defendant’s waiver of the continuing breach by continuing to accept rent in the knowledge that Dr. Bijlani was suspended.  This was however remedied by service of a second section 146 notice and the non-acceptance of subsequent rent. 

Relief from Forfeiture

Having lost on the lease interpretation point, and accepted that the lease had been validly forfeited,  Dr. Bijlani sought relief arguing that the breaches were not wilful and did not cause any material harm to the landlord’s business or reputation. The court found that as Botox treatments are not exclusively reserved for dentists, and such use had been specifically envisaged by the lease, there was no reputational harm to the building. The landlord’s own handling of its reputation, including retaining the plaque of a struck-off dentist visible, was considered relevant.

Relief from forfeiture is an equitable remedy within the court’s discretion.  The court in this case decided to grant relief, but on condition that Dr. Bijlani would not be allowed to use the premises unless and until her suspension was lifted. The court also required an undertaking from her in this regard. 

Conclusion

Harley Street has an international reputation for medical excellence and the landlord, who also carried out its medical practice in the building, perhaps did not want to have its own business associated with a suspended dental practitioner.  However in this case the court looked beyond a strict interpretation of the wording of the lease and decided that protection of a less tangible and more conceptual benefit (the good name of the landlord and its building) should not take precedence.

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