They are expected to argue that a retrospective change to the pension deal set out in the GMS contract is unlawful.
However, the DoH says the final decision on how pensions are calculated ‘is, in law, for the secretary of state’.
The cap cut pensions for GPs who worked past retirement age because of new contract incentives by up to £10,000 a year, and cut up to £30,000 from the lump sums they expected, according to accountants.
Health minister Lord Warner told GP leaders last month that the DoH would not stick to the pension deal agreed in the new GMS contract.
GP pensions are meant to be dynamised, or uprated, annually in line with profit growth. Growth over the first three years of the deal — 2003/4 to 2005/6 — was around 48 per cent.
But the DoH has said pensions will be dynamised by only 30 per cent over these three years, with the rest spread over 2006/7 and 2007/8.
Members of the GPC voted against industrial action last month, but there is strong support for legal action.
BMA pensions committee chairman Dr Andrew Dearden, a GPC negotiator, said counsel consulted by the BMA had said there was a ‘good chance, or pretty good chance’ of winning the case.
‘They have said effectively that it’s 50–50 or better,’ Dr Dearden revealed