In the December edition of Legal Action, I noticed a decision from November 2012 (yes, 2012), called Miah v McGrogan  EWCA Civ 1685 (Casetrack only).
Mr Miah seems to have been the landlord of a house which had been let to a number of students. They complained about the condition of the property and, although some remedial work was done, it was accepted that works remained outstanding (that might be too generous – Sullivan LJ notes that the Recorder “…conclude[d] not merely that the property was not in a properly habitable state at the start of the tenancy, but it also continued to be in a state that was not habitable up until April 2010…”.
Anyway, the students didn’t pay the last installment of rent, so Mr Miah sued.
The Recorder agreed that the property was in disrepair and that the tenants had been entitled to withhold the rent in response. In effect, there was a disrepair counter-claim which operated as an equitable set-off to the rent arrears claim.
The difficulty, said Mr Miah, was that no such counter-claim or set-off had ever been pleaded. That, said Sullivan LJ was “…little more than a somewhat unattractive pleading point.” The landlord was professionally represented. He knew what the case against him was. The students were all acting in person. There was nothing objectionable to the Recorder dealing with the case on the facts as she found them to be and not regarding herself as bring rigidly limited to the pleadings. Permission to appeal refused.