The HSE is to challenge what it says is the excessive private work being carried out by consultants in public hospitals

The move is in response to a hospital consultants’ breach of contract pay claim which is to be heard in the High Court tomorrow.

The hospital consultants say the HSE and the Department of Health failed to honour pay increases, according to the terms of the 2008 Contract.

It is estimated that consultants' pay claim if successful could cost the state anything between €150m to €700m.

RTÉ Investigates understands that the HSE has lodged a counter claim alleging that consultants are breaching their contracts by undertaking excessive private work in public hospitals.

The HSE is claiming that the cost of this non-compliance to the public health service is approximately €250m, which includes the cost of overpayment of wages for public work not done and the cost to the HSE of dealing with longer waiting lists.

In preparation for the breach of contract pay claim the HSE reviewed the private practice workload of a sample of consultants who are making the pay claim.

Under the terms of the 2008 Consultants' Contract, consultants are restricted to doing either 20% or 30% of private work in a public hospital.

Independent analysts from the UK were hired to review the private work record of over 400 consultants over a six year period.

From this they estimated the loss to the HSE in terms of money that should have been paid back to hospitals by all those identified as non-compliant consultants, for doing extra private work and the cost of dealing with increased waiting lists.

Both sides in the case, ten consultants represented by their unions - the Irish Hospital Consultants Association and the Irish Medical Organisation – along with the HSE and the departments of Health and Public Expenditure are currently in negotiations with a view to trying to agree an out-of-court settlement.

Reporting: Oonagh Smyth, RTÉ Investigates