A judicial review of the way the government’s flagship National Health Service foundation trusts calculate private patient income looked inevitable on Tuesday as a consultation failed to produce a compromise in a bitter dispute over the issue.

Unison, the biggest health service union, has already taken the first steps towards a judicial review. On Tuesday, Unison insisted that it was “for the courts to decide” whether its concerns that some foundation trusts were getting round the private income cap were “well founded”.