Any party to the hearing may request a re-opening of the hearing. In cases where the request for redress was from the Race Committee or the Technical Committee, or considered by the Protest Committee under rule 60.3
(b), according to the definition of Party
, this is a boat requesting redress or for which redress is requested. All other boats are “affected” boats but they are not Parties.
The word “may” in the first sentence of rule 66
means that there is no absolute obligation on the protest committee to reopen. A protest committee should re-open a hearing when either one of the two requirements of rule 66
is met. One is when the protest committee decides that it may have made a significant error. The other is when significant new evidence which was not available at the time of the original hearing becomes available within a reasonable time.
That said, it is not in the best interests of the event to allow an unsuccessful party a reopening only for the purpose of re-stating an argument or testimony that had already been considered. In those circumstances, a reopening would be unreasonably burdensome to the protest committee and to the other parties involved.
Errors by the protest committee that should lead to a reopening include improper procedures or misapplication of a rule. The protest committee might decide that a key conclusion was not supported by the facts. More often, a hearing is reopened when a mistake was made in the interpretation of a rule.
For a hearing to be reopened to consider new evidence, the evidence must be both new and significant. Rule M4
and World Sailing Case 115
provide an Interpretation of the word ‘new’ as used in rule 66
. The criteria provided by this Case states:
Evidence is ‘new’
if it was not reasonably possible for the party asking for the reopening to have discovered the evidence before the original hearing
if the protest committee is satisfied that before the original hearing the evidence was diligently but unsuccessfully sought by the party asking for the reopening, or
if the protest committee learns from any source that the evidence was not available to the parties at the time of the original hearing
Significant evidence means evidence that bears directly and substantially upon the specific matter under consideration and which is neither cumulative nor redundant. Cumulative evidence is additional evidence of the same character as existing evidence and that supports a fact established in the previous hearing, especially a fact that does not need further support. Significant evidence must be relevant to the decision and which leads to a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the case will change.
A party to a hearing has an obligation under the rules to prepare for the hearing, to locate witnesses, to collect evidence in advance of the hearing, and to request a postponement if it is needed, as described in rule 63.2
. If a witness or other evidence is known to exist but cannot be obtained in time for the hearing, it is the responsibility of the party to ask for additional time. The scribe will record any such request. For example, a new witness presented after the hearing is closed, is rarely considered “new evidence” unless the party made the protest committee aware of the witness before or during the original hearing, or unless the witness and his testimony were unknown to the party. When a party does not search for witnesses or does not ask the protest committee for a postponement, any later request to reopen to hear a “new” witness will rarely be granted.
If, however, the party attended the hearing and requested a postponement or extension of time to locate a witness, a subsequent request to reopen may meet the test of rule 66 and the protest committee will likely want to reopen the hearing.
Photographic and video graphic evidence that is claimed to be new can and should undergo a preview by some or all of the members to establish that the evidence is new, material and not cumulative. The chairman will usually assign two or three members to view the evidence and report back to the protest committee. If the evidence is appropriate and pertinent, or if there is any doubt, the members will refer the evidence to the full protest committee.
The protest committee could also learn itself of significant new evidence, and decide to reopen the hearing. If any new evidence is to be considered, the parties have a right to be present under rule 63.3
. In addition, the parties have the right under rule 63.6
to question any new witnesses.
If a party requests a reopening, the protest committee must decide if the request to reopen is valid. There is a time limit for requests to reopen a hearing. Under rule 66
, a party has up to 24 hours after being informed of the protest hearing decision to ask for a reopening. On the last scheduled day of racing, the time limit is shorter.
If the request is timely, the protest committee must decide, from the reasons given by the requesting party, if it has or may have made a significant error or if there is significant new evidence. The initial presentation by the requesting party should be limited to the reasons for reopening, not to any new evidence. The rules are silent on the subject, but if the other parties are available it is a good idea to have them present during this initial fact-finding.
If the protest committee decides there is sufficient reason to reopen, it must notify the parties of its decision. When the hearing will be reopened, the protest committee must provide the same notification that is required for a protest hearing. In addition, a majority of the members of the original protest committee should, if possible, be members of the original protest committee.
At a reopened hearing, the procedural rules of Part 5 apply, particularly, rule 63.6
. The protest committee shall take the evidence of the parties present at the hearing and of their witnesses and other evidence it considers necessary. Parties may also ask questions. The protest committee proceeds as it would in any other hearing.
If the protest committee decides on its own that it may have made a significant error, it may, without taking any new evidence, revise its decision without the parties present. There is no time limit for the protest committee to reconsider its decision. When the protest committee changes its decision, it shall inform the parties in accordance with rule 65.1
. This can be done by posting the revised decision or by delivering copies of the decision to the parties to the hearing.
It is always up to the protest committee to decide whether a request to open is granted. The examples above of situations where a protest committee may grant a reopening, are only a guide, and should only be used as such.
The protest committee may also reopen a hearing under rule 63.3
(b) when it had decided a protest without a party present, but later found that the party was unavoidably absent. That hearing would begin anew, rehearing all evidence previously presented.
If the national authority’s decision in an appeal is to reopen the hearing using rule 71.2
, the reopening proceeds with the evidence and witnesses that the parties bring, and with any other evidence the protest committee considers necessary.
When a hearing is reopened, rule 66
advises that a majority of the members of the protest committee shall, if possible, be members of the original protest committee.